Update on the Asylum Backlog

by Jason Dzubow

If you’ve visited this website before, you know that I’ve written about the asylum backlog again and again… and again and again and again and again. And yet again. And once more. And probably a few other times in-between. USCIS recently released some new statistics on asylum, and so I thought I would share them here and discuss the current situation.

Measured in smoots, the backlog is 86.9 miles long + one ear.
Measured in smoots, the backlog is 86.9 miles long + one ear.

First off, despite the efforts of the Asylum Division, the backlog continues to grow. In January 2015, the total number of backlogged cases was 76,446. By the end of March 2015, there were 82,175 backlogged asylum cases nationwide. The numbers have only increased since then.

The main cause of the backlog has been large numbers of people–mostly young people–coming to the United States from Central America. These young people are detained at the border and receive a credible fear interview, which is an initial assessment of eligibility for asylum. If they pass the credible fear interview, their case is referred to an Immigration Court, which then fully reviews their asylum application. The credible fear interviews are conducted by Asylum Officers, and because they are detained at government expense, the young people are given priority over other (non-detained) asylum seekers. Because the Asylum Division must devote resources to these credible fear interviews, they have been unable to keep up with the more traditional asylum cases. Hence, the backlog.

I keep expecting the number of young people coming here to wane, but so far that has not been the case. Indeed, the number of people coming from Central America this year is nearly identical to the numbers we saw last year. And given that summer is traditionally a busier time for migration from Central America, we can expect more young people to arrive at our border in the next few months. Thus, it seems likely that the backlogged cases will keep piling up.

According to the latest statistics, the least backlogged offices are Houston (3,971 backlogged cases), Arlington (5,791), and Chicago (6,485). The most backlogged office is Los Angeles (17,042), followed by Newark (14,924), New York (13,568), Miami (11,366), and San Francisco (9,028). Wait times in these offices roughly correlate with the number of cases backlogged, so Houston is currently the fastest office and Los Angeles is the slowest.

Of course, obtaining a (relatively) quick interview date is of little value if the case is denied. In terms of grant rates, the fastest offices are not necessarily the most likely to grant asylum. Although the statistics on this vary, the offices in Chicago, Houston, Miami, Newark, and New York all grant asylum less than 33% of the time. Arlington and Los Angeles grant about 50% of their cases, and San Francisco grants over 60% of its cases.

So what is the Asylum Division doing to address the backlog?

For one thing, they have been hiring more Asylum Officers. Since the backlog began in 2013, the number of staff members has increased by 90% and they continue to hire and train more officers. It appears that the Asylum Division will continue to add new officers through 2016. So if–and it is a big if–we see a drop in credible fear interviews at the border, the asylum offices should be well positioned to make some progress on the backlog.

The Asylum Division is also making an effort to keep the public more informed about the backlog. For some months now, there has been discussion about providing more information about processing times at the different asylum offices (for example, the Arlington, Virginia office is currently interviewing cases from July 2013). Because workloads are unpredictable, the asylum offices do not know when they will interview an individual case, but they do know which cases they are processing now. By posting this information, at least asylum seekers will have some idea about where they stand in the queue (the Department of State has a similar system for family- and employment-based immigration visas).

The asylum offices have also created some very limited ways to expedite cases. I have discussed those here.

As an advocate for asylum seekers, of course I believe that more should be done. Most importantly, I would like to see the asylum offices give higher priority to people separated from their immediate relatives. I would also like to see more resources devoted to processing I-730 petitions, which allow approved asylum seekers to bring their spouses and children to the U.S. Also, given that asylum cases are moving slowly, I would like to see USCIS issue work permits (EADs) for two or more years, instead of just one year. Finally, I would like to see responsibility for credible fear interviews moved from the Asylum Division to a separate unit or–better yet–the elimination of credible fear interviews altogether (CFIs are basically rubber stamps and thus a waste of resources; it would be better if such cases were adjudicated in the first instance by an Immigration Judge).

The Asylum Division is faced with a very difficult–if not impossible–task: To continue adjudicating asylum cases while dealing with an unpredictable and overwhelming number of credible fear cases, all the while, with a hostile Congress looking for excuses to reduce asylum protections. For the sake of our asylum system and those who need protection, I hope they can navigate these treacherous waters.

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For Every Child, a Lawyer

by Jason Dzubow

A case recently argued before the U.S. District Court in Seattle seeks to ensure that every child in removal proceedings is represented by an attorney. The case–styled J.E.F.M., et al. v. Holder–was filed by the Northwest Immigrant Rights Project, and claims that without the assistance of a lawyer, children in Immigration Court cannot receive due process of law.

Some children probably don't need lawyers.
Some children probably don’t need lawyers.

The Complaint notes that despite the efforts of many non-profit organizations, volunteer lawyers, and the government itself, the majority of children who appear before Immigration Judges go unrepresented. It compares the situation of children in Immigration Court with children in juvenile delinquency proceedings:

[The] Supreme Court recognized that when the Government initiates proceedings against children facing juvenile delinquency charges, the Due Process Clause requires the Government to provide those children with legal representation to ensure that the proceedings are fundamentally fair. In re Gault, 387 U.S. 1, 41 (1967). The Court held that “[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it… The Constitution guarantees children this safeguard notwithstanding the civil, rather than criminal, character of juvenile delinquency proceedings.

Immigrants, including immigrant children, are also entitled to Due Process when facing deportation [and Immigration Court proceedings, like juvenile delinquency proceedings, are civil, not criminal]. Reno v. Flores, 507 U.S. 292, 306 (1993). Both the Constitution and the immigration laws guarantee all children the right to a full and fair removal hearing, including the opportunity to defend against deportation and seek any forms of relief that would enable them to remain in the United States. And just as in juvenile delinquency proceedings, children cannot receive that fair hearing without legal representation.

In terms of the basic legal argument, this seems like a slam dunk: There is no way a child–or even your average non-English-speaking adult–can navigate the Immigration Court system without the assistance of someone who knows what she’s doing (i.e., a lawyer). But of course, the hard realities of life in the immigration world are not so simple, and there are a few policy arguments that may carry more weight than the legal claim. 

The first policy argument against providing lawyers to unaccompanied minors is cost. I view this argument as a bit of a red herring because I am not convinced that the cost of paying for lawyers is much different than the cost of not paying for lawyers. In cases where the alien is unrepresented, the Immigration Judge and the Trial Attorney must spend significant extra time on the case, and this time obviously costs the government money. I imagine this problem is particularly acute in cases involving children, who cannot easily articulate their claims. Where the child is represented, her attorney can prepare the case, communicate with DHS counsel, and present the case efficiently. Whether paying for this attorney is much more expensive than making the IJ and DHS sort out the case, I don’t know. But I would imagine that the difference in cost is not as significant as opponents of providing lawyer might have us believe.

The second policy argument concerns the incentives that providing lawyers will create. To me, this is the strongest policy argument against giving lawyers to children. The so-called “surge” of unaccompanied minors does not correlate with a spike in violence–the source countries have been very violent places for years. Rather, it seems likely that the surge was caused by “pull” factors–maybe the belief that immigration reform in the United States would grant benefits to people, if only they could get here before the reforms were implemented. I have little doubt that providing lawyers to unaccompanied minors would further incentivize children (and everyone else) to come here. Whether this is necessarily a bad thing, I am not sure. On the one hand, many of the young people who have come here face real harm in their home countries. On the other hand, more people coming to seek asylum in the U.S. burdens an already overwhelmed system and causes long delays–and great hardship–for everyone in the system. Of course, there are already many incentives for people to come to the United States: Safety, jobs, family reunification. I am not sure that one more incentive–the guaranteed assistance of an attorney–will make much difference.

Finally, there is the issue of public perception. It’s unclear to me where the public stands on asylum in general, and on unaccompanied minors in particular. There are loud voices on both ends of the spectrum: Advocates on one side who essentially believe in open borders and who want to use the asylum system to achieve that goal, versus restrictionists on the other side, like some in Congress who hope to “protect” these children by sending them all home. Frankly, I am not much of a fan of either camp, and I suspect that the general public is also somewhere in the middle. If the asylum system becomes too costly, or too much of an open door, we will likely see a shift in opinion against it, which will be bad for everyone. Whether or not providing lawyers to unaccompanied children will be the straw that breaks the camel’s back, I do not know, but given the current mood in Congress, it is a danger that needs to be considered.

All these policy considerations should (theoretically) not count for much with a court of law, but traditionally, such arguments have impacted decision-making in asylum and immigration cases. As advocates have continually expanded the categories of people eligible for asylum and the protections available to asylum seekers, we run the risk of making asylum a victim of its own success. For the sake of the many people who receive protection in our country, I hope that will not be the case.

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My Asylum Case Is Delayed; What Can I Do?

by Jason Dzubow

These days, I feel a bit like a broken record: Delay, delay, delay. It’s all I seem to write about (and what I spend much of my work day dealing with). But it is the big issue with asylum cases, both in the Asylum Office and the Immigration Court, and so it is on everyone’s mind. Today I want to talk about delay at the Asylum Office and what can be done about it.

Yipee! Asylum cases filed during the Jurassic period are now being interviewed.
Yipee! Asylum cases filed during the Jurassic period are now being interviewed.

Most recently, the Asylum Office changed its policy and is now interviewing old cases before new cases. This means that new cases will probably take one to two years before the interview. Previously-filed cases will be interviewed in the order that they were received by the Asylum Office. Our oldest backlog cases–filed in April 2013–have just been scheduled for interviews, so we are starting to see the effect of the new policy.

Anyway, let’s get to it. If your case is delayed, what can you do about it? There are several actions you can take to try to get a faster interview date. None of them is guaranteed to work, but–depending on your circumstances–some may be worth a try.

Short List: You can put your case on the “short list.” The short list is a list of people who will be contacted for an interview if another case is canceled. In my local Asylum Office (Virginia), there are approximately 250 cases on the short list. The Asylum Office interviews about 10 such cases per month, so the “short list” is not very short or very fast. When your name is called, you may not have much notice before the interview (for example, the Asylum Office could call you today and tell you to appear for an interview tomorrow). For this reason, when you put your name on the short list, your case should be complete and all documents should be submitted. This is particularly crucial if your Asylum Office–like mine–requires all documents to be submitted at least one week prior to the interview.

Once your name is on the short list, the Asylum Office will eventually contact you for an interview. In the event that you are called, but cannot attend, there is no penalty. However, your name will go to the back of the line, so probably you will not be called again for some time.

The bottom line here is that the short list may be a way to get an earlier interview date, but it is not all that fast. So it is certainly not a perfect solution. On the other hand, there really is no downside to putting your name on the short list, so if you would like to move your case faster, this is a good first step.

Request to Expedite: If you have a medical, family, professional, or other emergency or need, you can ask the Asylum Office to expedite your case. We have had mixed luck with this option. We’ve tried to expedite for several people where they had family members overseas who were facing problems. For most of these cases, the Asylum Office did not expedite, but for a few, it did. We were able to expedite a case where the client had cancer. We’ve also had luck expediting a case where the client needed to obtain status for professional reasons. In short, our success at expediting cases seems to have little relationship to the seriousness of the client’s problem.

If you want to expedite your case, you need to contact the Asylum Office and ask to expedite. You need to explain why you want to expedite and include some evidence–such as a doctor’s note–about the reason you want the case expedited. Again, we’ve had very mixed success with getting our clients’ cases expedited, but there really is no down side to trying.

Congress: You can contact your local Congressional Representative to ask for help with your case. You can find contact information for your local Representative here and for your state’s Senators here. Generally, in my experience, this option has not been effective at getting a faster interview date, but there is no harm in trying. If you have a U.S. citizen friend (or church group or other group) who can make this request for you, it may be more effective.

DHS Ombudsman: You can inquire with the DHS Ombudsman’s office about your case. This office exists to assist people who have problem cases. The Ombudsman’s website is here. I have a high opinion of the Ombudsman’s office, and they do want to help, but I think their ability to make cases go faster is very limited. I doubt they will be able to help make a case faster under ordinary circumstances. But perhaps if you have tried to expedite due to an emergency, and you have not had success, they could assist you.

Mandamus: You can file a Mandamus lawsuit against the Asylum Office. In a Mandamus lawsuit, you sue the Asylum Office and ask the Judge to order the Asylum Office to do its job (process your case). I have never done this, but I have heard about some applicants successfully suing the Asylum Office. Generally, the Asylum Office will not want to waste resources fighting Mandamus suits, so they might agree to process the case rather than fight the lawsuit. As I see it, the two downsides to this are: (1) There is not a strong legal basis to force the Asylum Office to process a person’s case. The regulations generally require asylum cases to be processed in less than six months, but there are broad exceptions to this time frame, and the Asylum Office can rely on those exceptions to process cases more slowly. Although the suits may not be very strong legally, they can still succeed where the Asylum Office would rather interview the applicant than fight the lawsuit; and (2) It can be expensive to hire an attorney to process a Mandamus lawsuit. For applicants who can afford this approach, however, it might offer a way to make things faster (though it will surely not enamor you to the Asylum Office). 

To learn more about your options, you may want to contact your local Asylum Office. Contact information about your office can be found here. There is no magic solution to delay at the Asylum Office, but I hope that some of these suggestions will be helpful. If you have had success with these or other ideas, please let us know.

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Old Asylum Cases Are the New Priority

by Jason Dzubow

As of December 2014, there was 73,103 asylum cases pending in Asylum Offices across the United States. That’s up from 65,759 in October, an increase of 7,344 cases in just three months (you can see the latest stats here, including a breakdown for each Asylum Office). So it’s clear that despite their efforts, the Asylum Offices are continuing to fall behind in terms of processing cases. Indeed, in the best month of the last quarter, the Asylum Office completed 2,947 cases. At that rate–and assuming no new applicants file for asylum–it would take over two years to get through the current backlog. This is not good, and the Asylum Offices are now making changes to deal with the situation. 

"Congratulations! It's finally your turn."
“Congratulations! It’s finally your turn.”

I’ve written before about the reasons for these delays. Primarily, it was due to a significant increase of asylum seekers from Central America arriving at our Southern border. As best as I can tell, the number of people coming here from Central America has not abated. Since most of these applicants are detained at government expense and because many of them are minors, their cases are given priority, at the expense of other asylum seekers.

So how were the Asylum Offices dealing with the increased volume, and what has changed?

Until December of last year, the Asylum Offices were attempting to process cases on a “last in, first out” basis.  Meaning, they skipped over the old cases and tried to process new cases. The logic was that if they started with the old cases, processing times would be greatly increased for new cases. If an alien knows her case will take several years, she might decide to file a frivolous case, just for the Employment Authorization document (“EAD”). The slower the case moves–the thinking goes–the greater the incentive for such people to file false cases. The fear of frivolous applicants taking advantage of the system in this way is not unfounded.

In the 1980s and early 1990s, when a person filed for asylum, he received an EAD more quickly. At this time, there were massive delays and cases took many years. The combination of long waiting periods and quick EADs encouraged fraud. I heard one anecdote from an INS officer who remembered a U-Haul truck full of applications arriving for processing. They were all boilerplate cases from China, filed by the same (probably unscrupulous) attorney. Even if the cases were ultimately denied, the applicants would have an EAD and be able to live and work in the U.S. for several years. Of course, many cases during this period were legitimate. In those days, there were very brutal civil wars in several Central American countries. As a result, many people fled to the United States.

In 1995, the law changed so that asylum applicants had to wait 180 days before they were eligible for an EAD (though they could mail the application for the EAD after 150 days). This was intended to reduce fraud. I have my doubts as to whether this change made much of an impact, but as the civil wars to our South ended, refugee flows decreased, and the Asylum Offices slowly reduced wait times.  By the time I went into private practice (in late 2003), asylum cases were interviewed a few months after filing, and most applicants received decisions a few weeks after the interview.

This all changed in early 2013, when large numbers of Central Americans–mostly young people–again began arriving at our border. The migration was not spurred by war, but by generalized violence from gangs and domestic abusers, as well as a failure by Central American governments to protect their citizens. The influx of new people overwhelmed the system and created the situation that we have today.

USCIS (the Asylum Office) has been struggling to keep up. Here is a recent announcement about their efforts:

The USCIS Asylum Division is hiring an additional 175 asylum officers, increasing the number of authorized asylum officer positions to 448. This represents a 65% increase since July 2013. As of January 2015, the Asylum Division has 350 officers on board and continues to hire and train new personnel. During 2014, USCIS also trained and temporarily detailed officers to the Asylum Division to assist with the increasing workload. 

Unfortunately, their efforts have not been enough. As of December 26, 2014, they abandoned the “last in, first out” system. Now, the Asylum Offices will process cases in the following order of priority:

  • First, applications that were scheduled for an interview, but the applicant requested a new interview date;
  • Second, applications filed by children; and
  • Third, all other pending affirmative asylum applications will be scheduled for interviews in the order they were received, with oldest cases scheduled first.

In other words, aside from rescheduled cases and cases involving children, the Asylum Offices will now process old cases first. So what does this mean? 

First, the good news. For those who have been waiting for two years for an interview, hopefully, your time is coming soon (though in my office, we have not yet seen any of our old cases scheduled).

Next, the bad news. If you are a new asylum applicant, you can expect to wait a long time for your interview. How long, we do not know, but I suspect that–even if they hire more officers, as they are trying to do–it will be at least a year. There are some minimal things to do to make a case faster (the “short list” and a request to expedite for emergent reasons), but generally it is very difficult to obtain a faster interview date.

And finally, the possibly bad news. We will see whether long delays encourage people to file more frivolous cases. If so, it will further clog the system.

As for me, of course I am rarely happy about change, and this change is no exception. I am glad that the government will start processing old cases. Those people have been waiting a long time. However, I wish they would give priority to people separated from their spouse and children–whether they filed two years ago or two days ago. It seems to me that single people can endure the wait much better. Like the old system, the new system does little to help people who are missing their family members, and to me, that is the real tragedy of the backlog.  

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Immigration Court: The Other Backlog and What to Do About It

by Jason Dzubow

I’ve written quite a bit in these pages about the backlog at the Asylum Offices, but today I want to focus on another backlog–in the Immigration Courts–and what can be done to improve the situation. The Court backlog has been a bit off my radar; I suppose because the Immigration Courts have always been slow, and so delay in that realm was the norm. But the fact is, the delays in Court have gotten worse. My furthest case is currently set for March 2019. I expect to travel to the Court in my hovercraft.

Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.
Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.

The basic problem for the Courts, and across the government, is money. Resources are limited and now, with a Congressional leadership hostile to immigration, it seems less likely that the budget for EOIR–the Executive Office for Immigration Review; the agency that oversees the Courts–will be expanded (though a new, anti-immigration bill pending in the House would create 50 new Immigration Judge positions). However, there are some reforms that could be implemented that would not require additional money from the government.

Below are a few suggestions. Some might require Congressional action; others would not. Given the current situation, something needs to be done. Perhaps some of these ideas would help alleviate the Court backlog:

– Impose Costs: Criminal and civil courts routinely impose costs and fines on people in the system, so why shouldn’t Immigration Courts do the same? There generally is only one reason that a person would have a case before an Immigration Judge–he violated the immigration law. Maybe the violation wasn’t his fault (think referred asylum seekers), and so a fine or payment of costs is not warranted, but the IJ can make this determination. The Immigration Court system is expensive, and it seems fair that people who are in the system because they violated the law should help pay for it. And of course, this money could be used to help improve the system.

– Premium Processing: Certain application before USCIS allow for premium processing. The applicant pays additional money and receives a faster decision (though not necessarily a better decision). Maybe the Immigration Courts could create some type of premium processing so that an alien could pay additional money to speed up her case. I have written about this idea in the context of the Asylum Office. The people who pay the premium processing fee would benefit the most from this plan, but the infusion of money into the system should benefit everyone.

With regard to the imposition of costs and premium processing, it seems a reasonable question to ask: Is this fair to people who cannot afford to pay? I suppose it is not, but America is not really a fair place. We are a liaise faire capitalist democracy. Every man for himself, and all that. We routinely fine the poor for being poor, and while I don’t like imposing costs in the immigration context, it is a way to improve the system for everyone–even those who cannot pay.

One last point here. Maybe one way to ease the burden would be to spread out the cost. If an alien is fined or forced to pay costs (to pay for the court, DHS, his own detention, etc.), those costs could be paid over time. Instead of receiving a green card, for example, the alien could receive a conditional green card that must be renewed every two years. As long as he continues to pay his debt, the card will be renewed.

– Empower DHS: DHS attorneys are overworked and lack the resources necessary to properly do their jobs. Adding additional staff to the various Trial Attorneys offices would allow DHS to review cases in advance. This would allow attorneys like me to file applications for relief in advance. DHS could then review the applications and–where appropriate–agree to the relief. Of course, DHS would not agree to relief in all cases, but in many cases, relief is not contested. If we could agree on relief in advance, we could remove the case from the Court’s docket, thus freeing space for other cases. Indeed, perhaps this could be combined with premium processing, so that the alien can pay a fee to DHS to review her case (and DHS could use this money to hire more staff). Maybe DHS could even meet with the alien to further explore whether relief is appropriate. If, after examining the case, DHS determines that relief is appropriate, it could inform the Court, which would then grant the relief without a hearing.

There has been some (tepid) movement in this direction, with prosecutorial discretion, but that does not go far enough. Aliens who are eligible for substantive relief do not want prosecutorial discretion; they want their cases granted. If DHS had the resources to review and decide cases in advance, it would help alleviate the backlog before the Immigration Courts.  

– Pre-Master Calendar Hearings: Let’s face it, Master Calendar Hearings (“MCH”) are a huge waste of time. Why not require any alien who enters the system to attend a pre-MCH with a member of the Court staff (not an IJ). The pre-MCHs could be arranged by language group, so that everyone attending speaks the same language and the Court staff member could be fluent in that language (or have an appropriate interpreter). At the pre-MCH, the aliens would watch a video–in their own language–explaining the system and their rights (basically what the IJ repeats to pro se aliens 31 times each MCH). The staff member could answer basic questions and encourage the pro se aliens to find lawyers (basically what the IJ does 31 times each MCH). Aliens who will not use a lawyer can be scheduled for an in-person MCH, like what we have now. Aliens who say they will hire a lawyer will be given a deadline for the lawyer to enter her appearance (see the next suggestion for more on lawyers and MCHs). If the deadline passes, the alien will need to attend an in-person MCH.

– e-Master Calendar Hearings: EOIR now requires all attorneys to register and obtain an EOIR ID Number. As far as I can tell, EOIR does nothing with these ID numbers. However, it (supposedly) is a first step towards electronic filing. Federal courts across the United States require electronic filing, and I see no reason that the Immigration Courts should not do the same. Once an attorney enters her appearance, she should be able to go on-line and plead to the allegations and charges in the Notice to Appear (the charging document in Immigration Court). She should also indicate the relief sought. If there is some reason that the lawyer needs to see the IJ, she can request to appear at a regular MCH. But for the large majority of cases, all the pleadings and requests for relief could be done on-line. How, you ask, would this be an improvement over the current system, where lawyers can file written pleadings? At least in my experience, written pleadings are a huge pain in the tuchus. IJs often ignore them until the last minute, and we have to repeatedly call the Court to see whether the IJ will rule on them. So they really are not worth the trouble. If there was an easy electronic system that actually worked, and we could avoid MCHs, attorneys would be much inclined to use that system. It would save Court and DHS time, and it would also save attorney time and perhaps reduce costs for the alien.  

OK, I suppose that is more than enough for now. If anyone at EOIR wants to hire me to implement these changes, you know where to reach me…

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Lessons Learned from Cases Lost

by Jason Dzubow

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

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

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

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

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

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

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

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

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I Was Interviewed for Asylum, But I Never Received a Decision

by Jason Dzubow

Some asylum seekers file their applications and never receive an interview. Others are interviewed for asylum and never receive a decision. I’ve discussed the first problem–called the backlog–several times, but today I want to discuss the second problem. What happens to people who are interviewed for asylum, but then wait forever for a decision?

Better late than never.
Better late than never.

I’ve had a number of clients with this problem. They fall into a few broad categories.

One group are people from countries that are considered a security threat to the United States–countries like Afghanistan, Syria, Iraq, and Somalia. People from such countries are subject to more extensive—and thus more time consuming—security background checks. The security check process is very opaque, so we really don’t know much about what the government is checking or why it takes so long, and the length of the delay seems to have nothing to do with the person’s personal history (for example, I’ve had clients who worked in the U.S. Embassy in their country or with the U.S. military, and still the background check was delayed). To me, the security background check delays don’t make sense. If the person is a threat to the United States, allowing him to live freely here for months or years while the government investigates his background seems like a bad idea. Another aspect of the background check that does not make sense is that asylum seekers in court never seem to be delayed by security checks. Also, aliens seeking their residency in other ways (marriage to a U.S. citizen or through employment) don’t seem to have problems with background checks either. While the need for background checks is clear, the inordinate delays for asylum seekers is hard to understand.

Another group of people who face delays after the interview are people who may have provided “material support” to terrorists or persecutors. I have a client like this–he was kidnapped by terrorists and released only after he negotiated a ransom (which was paid by his relative). Had he not paid the ransom, his case would not have been delayed post-interview. Of course, had he not paid the ransom, he would have been killed by the kidnappers, so the point would probably be moot. I imagine that his case is subject to review by Headquarters, which again, seems reasonable. But why it should take 10 months (so far) and what they hope to discover through an additional review, I don’t know.

A third group of people whose cases are delayed are members of disfavored political parties or organizations. Such people might also be subject to the “material support” bar, but even if they have not provided support to persecutors, their cases might be delayed.

A final group are high-profile cases, such as diplomats and public figures. When such a person receives asylum (or is denied asylum), there are potential political ramifications. Again, while I imagine it makes sense to review such cases at a higher level, I am not exactly sure what such a review will accomplish. The law of asylum is (supposedly) objective–we should not deny asylum to an individual just because her home government will be offended–so it is unclear what there is to review.

These delays are particularly frustrating given that decisions in asylum cases should generally be made within six months of filing.  According to INA § 208(d)(5)(A)(iii), “in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” Unfortunately, the “exceptional circumstances” clause is the exception that swallows the rule. These days, everything from backlog to background check to Asylum Office error seems to pass for exceptional circumstances. I know this is not really anyone’s fault–the Asylum Offices are overwhelmingly busy, but it is still quite frustrating.

Indeed, I have had clients waiting for more than two years (two years!) after their interview, and the asylum offices can give us not even a hint about when we will receive a decision. The worst part about these delays is how they affect asylum seekers who are separated from their families. I’ve already had a few clients with strong claims abandon their cases due to the intolerable wait times. The saddest case was an Afghan man who recently left the country, two years after receiving a “recommended approval.” The client had a wife and small children who were waiting in Afghanistan. After he received the recommended approval–in 2012–we were hopeful that he would soon receive his final approval, and then petition for his family. After enduring a two-year wait, during which time first his child and then his wife suffered serious illnesses, the client finally gave up and returned to his family. This is a man who worked closely with the U.S. military in Afghanistan and who has a very legitimate fear of the Taliban. In his case, we would have been better off if the Asylum Office had just denied his claim–at least then he would have known that he was on his own. Instead, he relied on our country for help, we told him we would help, and then we let him down.

Delays after the interviews seem to affect a minority of applicants, and they have not garnered as much attention as the backlog. However, they can be just as frustrating and never-ending as backlogged cases. At the minimum, it would be helpful if the Asylum Offices could provide some type of time frame for these people, particularly when they are separated from family members. As DHS struggles to deal with the backlog, I hope they don’t forget about those who have been interviewed, but who are also stuck waiting.

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The Obscure Swedish Diplomat Who Gave Us “Particular Social Group”

by Jason Dzubow

Odds are, you’ve never heard of Sture Petrén. But if you are a refugee who has escaped persecution on account of female genital mutilation, domestic violence or sexual orientation, you may owe him your life.

If you've received asylum based on PSG, you should send your thank yous to Sture Petrén.
If you’ve received asylum based on PSG, you should send your thank yous to Sture Petrén.

Sture Petrén—full name: Bror Arvid Sture Petrén—was born in Stockholm, Sweden on October 3, 1908. He studied law and philosophy at Lund University, and then served in various law courts in his home country from 1933 to 1943, when he was appointed as an appellate judge. In 1949, he was recruited by the Ministry of Foreign Affairs, where he served as the Director of the Legal Department for the next 15 years. More significantly from the point of view of history, Judge Petrén was appointed to the Swedish delegation to the United Nations General Assembly, where he served from 1948-61. He went on to other prestigious posts domestically and internationally. He was a member–and eventually President–of the European Commission of Human Rights, he was a member of the International Court of Justice, and he served as a judge on the European Court of Human Rights. In 1972, Judge Petrén was knighted by the Swedish king. He died in Geneva on December 13, 1976.

For all his accomplishments, it seems that Judge Petrén’s most notable achievement is probably one that he himself did not think much about at the time: In November 1951, he added the phrase “particular social group” to Articles 1 and 33 of the United Nations Refugee Convention. 

In the fall of 1951, the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons held a series of meetings to hash out the Convention on the Status of Refugees. The original Convention listed four protected categories: race, religion, nationality, and political opinion. The Swedish delegation, led by the good Judge, introduced an amendment to Article 1 adding the phrase “particular social group” or PSG. Judge Petrén offered little in the way of explanation for the addition. In the transcript from November 26, he says only that the other protected categories suggest the inclusion of a “reference to persons who might be persecuted owing to their membership of a particular social group.” “Such cases existed,” said the Judge, “and it would be as well to mention them explicitly.” Without further discussion, the amendment was adopted that same day. Fourteen members voted in favor of the amendment, none opposed, and eight abstained (though history apparently does not record how each country voted).

A week later, Judge Petrén introduced the same amendment to Article 33 (non-refoulment), so it would be in conformity with Article 1 (modern-day U.S. immigration law derives the asylum/refugee definition from Article 1 of the Convention; the Withholding of Removal definition comes from Article 33). 

So does the origin of the phrase PSG shed any light on the term’s meaning today? What—if anything—can we learn from the historic record?

First, it seems that Judge Petrén’s addition to the Convention was based on the draft of a planned law in Sweden called the National Alien Act, which went into effect in 1954. The National Alien Act was, in turn, based on the existing Swedish practice of protecting aliens who were members of a PSG, though Swedish law from the 1950s apparently does not define PSG. To the extent that the modern-day Swedish Alien Act is instructive, it seems clear that sexual orientation and gender were not consider particular social groups. The modern law offers protection to people in a PSG, homosexuals, and people who face persecution on account of gender. As one commentator observed, it would be superfluous to separately list PSG, sexual orientation, and gender, if sexual orientation and gender were considered PSGs. 

I could not find a copy of the old Swedish law (upon which the Convention definition of PSG was purportedly based), but it would be very surprising—even for a forward-thinking country like Sweden—if the 1950s law separately protected people based on gender and (especially) sexual orientation. My guess is that the Swedish law listed PSG as a protected category, but left the term undefined. Of course, this does not mean that PSG was meant to encompass sexual minorities and women under Swedish law or under the Convention definition. The Dead White Men who created the Convention may have been progressive for their time (though there are arguments that they were not), but it seems more than unlikely that the idea of specifically protecting gays and women was even on their radar. At least I could find no evidence in the historic record to support such a notion.

A second question is what Judge Petrén understood the term PSG to mean. I am not sure whether his understanding is relevant to anything other than historical curiosity, but it seems almost certain that he had no intention of dramatically (or even modestly) expanding the protected categories. Rather, PSG was meant as a safety net to catch people who did not easily fit into the other categories–people like aristocrats and linguistic minorities, to name a few. Indeed, Judge Petrén’s comments indicate a realist, as well as an idealist. After noting that Sweden was a country of asylum in the past, he states, “but the fact must be taken into account that its capacity for absorbing large numbers [of refugees] was limited and that, particularly in the present serious state of world affairs [post-WWII], considerations of national security must play a certain part.” This does not necessarily sound like someone who wanted to greatly expand the classes of people covered by the refugee definition.

To a large degree, of course, all this is academic. The goings-on in 1951 are a long way from our reality today. Perhaps an Originalist—like a Justice Scalia—might parse Judge Petrén’s words and look back to post-War Swedish law to suss out some meaning that informs our definition of PSG today. However, given that the Convention and mid-20th Century Swedish law are pretty removed from current U.S. asylum law, the Originalist inquiry seems like a stretch.

Moreover, laws and norms change over time. The vagaries of the past are fodder for debate today. To me, such debates are healthy and—hopefully—lead us in the direction of Justice. Although Judge Petrén probably had no intention of altering the refugee definition so dramatically, he certainly planted the seed that led to protection for many thousands of people. Intended or not, that is his extraordinary legacy.  

Special thanks to Ali and Behnam for their help with this article. 

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Back(log) to the Future: 60,000+ People Stuck in the Asylum Backlog

by Jason Dzubow

I recently participated in a panel discussion at the Congressional Black Caucus Foundation in Washington, DC. The panel was hosted by Congresswoman Yvette Clarke and featured speakers from academia, non-profits, government, and the private bar. The introductory speaker was the Ambassador of Jamaica, who (to my surprise) knew more about asylum law than most immigration attorneys. The focus of the panel was on asylum seekers of African decent (so, generally, people from Africa, the Caribbean, and Latin America).

Déjà queue - The backlog is back. Or maybe it really never went away.
Déjà queue – The backlog is back. Or maybe it really never went away.

One purpose of the panel was to bring attention to asylum seekers and refugees from Africa and the African diaspora. According to Jana Mason of UNHCR, despite the recent turmoil in the Middle East, the plurality of the world’s refugees and internally displaced people come from Africa. This is significant because in the United States, there is not a strong constituency to support these people (as there is for Cubans, for example). The result is that African and diaspora asylum seekers often receive less attention and less support than asylum seekers from other places. The CBC hopes to improve our government’s policies towards African asylum seekers, and our panel was part of that effort.

Panel speakers also touched on issues that affect asylum seekers in the U.S. more generally. The most important comments in that regard came from John Lafferty, the Chief of the Asylum Division at USCIS, who spoke–among other things–about the backlog (for some background on the backlog, check out my previous post).

The statistics Mr. Lafferty cited were sobering: 55,000 affirmative asylum cases filed in FY 2014, over 50,000 credible fear interviews, and a nationwide backlog of 60,000 cases. USCIS estimates that it might take three to four years to resolve the backlog, and presumably that’s only if unforeseen events don’t cause additional delay.

One piece of good news is that USCIS has been working hard to deal with the situation. In the last year or so, they’ve grown from 273 asylum officers to 425 officers, and they plan to hire additional officers going forward. I must say that my experience with the new officers has been a bit mixed. Most are excellent–professional, courteous, knowledgeable, and fair. A few, though, seem to be unfamiliar with the law or with basic interview techniques. Hopefully, as they gain more experience, these kinks will be worked out (and hopefully not too many legitimate refugees will be denied asylum in the mean time).

Despite USCIS’s efforts, the backlog has continued to grow. At this point, even if no new cases enter the system, it would take over one year to review all 60,000 cases. And of course, new cases continue to enter the system all the time. Given the large number of people stuck in the backlog, I’d like to offer a few suggestions on how to make life easier for those who are waiting:

First, and I think most importantly, USCIS should give priority to applicants with family members who are overseas. This can be done in at least two ways: (1) Review existing I-589 forms, and where there is a spouse or child who is currently not in the U.S., give that case priority; and (2) when a backlogged case is (finally) approved, give priority to any I-730 petition for family members following to join.

Second, and this would probably require a legislative fix so maybe it is pie in the sky, for any case that USCIS knows will enter the backlog, allow the applicant to file immediately for her work permit (under existing law, the asylum applicant must wait 150 days before filing for a work permit).

Third, instead of issuing the work permit (called an employment authorization document or EAD) for one year, issue it for two years (or more). A two-year EAD would make life easier for asylum seekers. Renewing the permit every year is expensive and processing delays sometimes result in people losing their jobs and driver’s licenses (which are tied to the EADs).

Fourth, devote more resources to backlogged cases, even if this means slowing down the process for newly-filed cases (backlogged cases have been skipped; USCIS processes new cases before backlogged cases). Even if only a few backlogged cases were being adjudicated, this would at least give hope to the thousands who are waiting without any sign of progress. Also, it would be helpful for people to have some sense of when their cases will be adjudicated. USCIS should endeavor to release as much information as available about their efforts to resolve the backlog. Given that each Asylum Office has its own website, perhaps the information could be posted there and updated regularly.

I recognize that USCIS’s situation is difficult and unprecedented, and that they have been overwhelmed by the large numbers of new applications and credible fear interviews. But from my view of things, the situation for those who are waiting is pretty rough. These modest suggestions would help to mitigate the difficulty for the most seriously affected, and would give some hope and relief to the others.

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“Miranda Rights” for Asylum Seekers

by Jason Dzubow

It’s a common scenario in my office: A person who entered the U.S. unlawfully at the Mexican border, and who was detained and released by U.S. immigration authorities, wants to seek asylum, but has missed the one-year deadline to apply.

Dupe process of law at the border: Don’t tell people about their rights, and they won’t exercise them.
Dupe process of law at the border: Don’t tell people about their rights, and they won’t exercise them.

Just the other day, a young man from El Salvador came to me for a consultation. In his country, gang members threatened to kill him. They targeted him partly because of his religion (Evangelical), but mostly because he had a job and (they presumed) money. They also targeted his wife and young child. The man’s family went into hiding and the man came to the United States. He entered without inspection in June 2013 and was apprehended by the Border Patrol. After he passed a credible fear interview (a CFI is essentially an initial evaluation of whether the alien can state a claim for asylum), he was released and ordered to appear before an Immigration Judge. The man attended his first hearing, where the IJ gave him additional time to find a lawyer. That’s when I came into the picture—in September 2014; more than one year after the man entered the United States.

So how to evaluate this man’s case? On the merits, it’s not a great case. He certainly faces grave harm if he returns. But it may be difficult to show that the harm is “on account of” a protected ground: Perhaps he has a claim based on his fear that the gang will persecute him due to his religion, or his particular social group (family; maybe “people with jobs”), but it’s certainly not a slam dunk. Probably the more difficult issue, however, involves the man’s failure to file for asylum during his first year in the United States (in order to qualify for asylum, an alien must file the asylum form–the I-589–within one year of arrival or meet an exception to the one-year deadline). With regard to this filing deadline, the man’s case is pretty typical.

Like most asylum lawyers, I despise the one-year filing deadline (found at INA § 208(a)(2)(B) and 8 C.F.R. § 208.4). It was originally enacted to help prevent fraud. The logic being that if you had a legitimate case, you’d file it within a year. The reality is quite different. People like the Salvador man know that they face harm in their country, but they have no idea about the law, and little incentive (or money) to hire a lawyer until their court date is imminent—often well beyond their first year here. The result is that legitimate refugees are denied asylum for reasons completely unrelated to their claims and, instead of reviewing the merits of a case, the IJ or asylum officer is stuck evaluating the applicant’s excuse for failing to file within one year. For these reasons, it’s hard to find anyone involved in the system who likes the one-year rule. So what can be done?

The obvious solution is to eliminate the one-year bar. But that would require Congressional action, and it’s rare these days to see the words “Congress” and “action” in the same sentence. So I won’t hold my breath on this idea.

A more realistic solution may be to create a Miranda­-style rule for asylum. In other words, the Border Patrol or the Immigration Judge or whoever the alien comes into contact with, would be required to inform the alien that if he wishes to seek asylum, he needs to file the form I-589 within one year of arrival. We could also require that the alien be informed about the one-year rule in a language that he understands, and (since we are wishing) we can even require that they give him a copy of the form and information about where to file it.

I think the 1966 Supreme Court case Miranda v. Arizona provides a good model for how to protect aliens. That case created the famous “Miranda warning” that police read at the time of arrest (You have the right to remain silent; anything you say can be used against you in a court of law. You have the right to an attorney…). In reaching its decision, the Court wanted to protect our Fifth Amendment right against self incrimination (no one “shall be compelled in any criminal case to be a witness against himself”). The Court reasoned that in the intimidating environment of police custody, suspects might feel compelled to talk, and so the Court created the Miranda warning to help ensure that people will understand their right against self incrimination. One portion of the case particularly strikes me:

An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak.

The image of the beleaguered suspect, disoriented and in unfamiliar surroundings, unable to exercise his Fifth Amendment rights, seems to me analogous to the alien, recently arrived in the U.S., who is taken into custody, placed into a system that he does not understand, in a language that he (probably) does not understand, and who then loses substantive rights as a result of his predicament. True, in the case of Miranda, the suspect was momentarily disoriented and vulnerable, whereas with asylum seekers, the person has a whole year to file his case. But just as the Miranda Court examined specific instances where suspects’ rights were violated and reached its conclusion that protection was necessary based on an analysis of how suspects actually behaved in custody, an examination of how many aliens are behaving will reveal that they are not aware of the one-year filing requirement.

For many legitimate refugees–like my potential client from El Salvador–learning about the one-year filing requirement is much more difficult than it might seem. They are in a new country where they do not understand the language or culture, they probably have spent much of their lives living in fear of their government, they often have no support network and few resources, and many times the “advice” they receive from notarios, unscrupulous lawyers, and “friends” is incorrect. In short, unless they are well-educated or well-connected, many asylum seekers have little chance to learn about the one-year filing requirement. The result, of course, is that they miss the deadline and lose their opportunity to claim asylum. 

Aliens have a due process right to file for asylum. However, just like suspects in police custody, unless they are made aware of their rights, many legitimate refugees will continue to miss the one-year deadline and lose their right to seek asylum. It seems easy enough to solve this problem: Create a Miranda-style rule requiring government officials to inform aliens about the one-year deadline.  

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Sixteen Years and 20 Minutes to “Other Serious Harm” Asylum

by Jason Dzubow

Our guest blogger today is Jonathan Bialosky, an attorney at the George Washington University Law School Immigration Clinic. He recently had an important win in an “other serious harm” asylum case. It also happens that he was a student in Todd Pilcher and my Asylum Law class at GW last semester. Congratulations on the win (and on passing our class – which you could have taught). Enjoy– 

On September 3rd, 16 years after filing his application, and two years after first approaching the GW Immigration Clinic, my client was granted asylum. Sixteen years is a long time, even in the glacially slow world of EOIR, but more significant is that the Immigration Judge granted my client “humanitarian asylum” on a basis that seems to be greatly under-utilized.

Jonathan Bialosky, who claims that taking Todd and my class constitutes "other serious harm."
Jonathan Bialosky, who claims that taking Todd and my class constitutes “other serious harm.”

There are two types of humanitarian asylum. The first is for individuals whose past persecution was so severe that they cannot be expected to return to their home country, even if—typically because of changed country conditions—they no longer have a well-founded fear of return on account of a protected ground. The BIA first addressed this type of humanitarian asylum in 1989 in the precedent decision Matter of Chen, and this type of humanitarian asylum was codified as a regulation in 1990. 

Matter of Chen seems pretty well-known, but a second type of humanitarian asylum is apparently much less common. Pursuant to a regulation that became effective in 2001, under a different type of humanitarian asylum, applicants who suffered past persecution on account of a protected ground but who no longer have a well-founded fear of persecution on account of a protected ground remain eligible for asylum if there is a reasonable possibility that they would suffer “other serious harm” upon removal. The BIA, in the 2012 precedent decision, Matter of L-S-, explained that the “other serious harm” need not be related to the past persecution or even have a nexus to a protected ground.

My client qualified for “other serious harm” asylum because he previously suffered past persecution on account of his imputed political opinion and now, due to serious medical conditions, he would die if he were removed to his home country, where the medical care he needs to survive is not available. My client is from Sierra Leone and he served in a regimental band in the country’s army. In 1998, during the civil war, he was falsely accused of involvement with anti-government rebels. He was detained at a military barracks for two weeks, beaten with sticks and weapons, and burned with cigarettes. He escaped and made his way to the U.S. Sadly, beginning in 2000, when he was diagnosed with HIV, my client suffered a series of medical problems. His kidneys failed, he went into a coma, and then, after finally receiving a kidney transplant, his body rejected the new organ. All the while, his asylum application (first filed in 1998 within six months of his arrival in the U.S.) remained administratively closed by USCIS—for 13 years—hence the long wait for a decision.

Through dialysis and participation in a clinical trial of anti-retroviral drugs with the NIH, my client’s medical condition is more or less stable, but he leads a pretty grim life: He has many dietary restrictions, he’s on dialysis three days a week for four hours at a time, and he’s constantly tired. In addition, he has chronic nightmares about what happened in Sierra Leone. All these problems, combined with the generally poor quality of medical care and the recent Ebola outbreak in Sierra Leone, made it pretty clear that, even though the civil war has ended, my client would suffer “other serious harm” upon removal. Dialysis is not widely available and is prohibitively expensive in Sierra Leone, and kidney transplants are even more rare. One doctor wrote a letter stating that sending my client to Sierra Leone was a “death sentence,” and that he wouldn’t last more than a few weeks there.

The ICE trial attorney and, more importantly, the Immigration Judge, agreed. After 16 years, my client’s asylum merits hearing lasted just 20 minutes. ICE and the IJ were satisfied with the evidence we submitted before the hearing that my client was deserving of humanitarian asylum.

It wasn’t me who identified the legal theory that ultimately won my client’s asylum. Others far sharper than me identified the legal basis that essentially made my client’s case a shoo-in. I had no idea about humanitarian asylum. When I told an immigration attorney friend that I was working on a humanitarian asylum case, she was only familiar with the Matter of Chen type claim. I was also surprised to see very few judicial opinions discussing “other serious harm asylum” (though admittedly, this made the legal research for my brief much easier).

“Other serious harm” asylum has the potential to help many people, even those who have been in the U.S. for more than one year and never applied for asylum. Actually, “other serious harm” humanitarian asylum may render the one-year filing deadline meaningless for some. Consider those that suffered past persecution on account of a protected ground and now cannot return to their home country for some other reason. As my client’s case demonstrates, the reason could be that the individual has a medical condition that cannot be effectively treated in the home country. In addition, Matter of L-S- states that “civil strife, extreme economic deprivation and new physical or psychological harm” could be the causes of other serious harm. The inquiry is prospective, so changed circumstances matter. A recently diagnosed medical condition or outbreak of violence in the home country could constitute changed circumstances that serve both as an excuse for the late filing of the asylum application and as the basis of “other serious harm.” To my knowledge, this has not been tested, but for individuals who did not comply with the one-year filing deadline, “other serious harm” humanitarian asylum may present a viable option for relief where there otherwise would be none.

My client’s experience seems almost tailored-made for “other serious harm” humanitarian asylum, but maybe there are others out there who could benefit from this basis for asylum. With a little publicity for this relatively obscure regulation, maybe some of them can win asylum too. With any luck, they might even be able to do so in fewer than 16 years.

Jonathan Bialosky, Esq., supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court.  He previously served as director of the Maxwell Street Legal Clinic in Lexington, Kentucky from January 2011 until July 2013, serving as the sole attorney at a nonprofit immigration law practice. Jonathan is a May 2010 honors graduate of the George Washington University School of Law.

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One Giant Leap for a Woman; One Small Step for Womankind

by Jason Dzubow

In a recent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group (“PSG”) for purposes of asylum. The decision is significant because it marks the first time that the Board has published a decision essentially endorsing asylum for victims of domestic violence. Applicants who seek asylum under this standard will still need to prove that the level of harm they face constitutes persecution, that they cannot relocate somewhere else within their country, and that their government is unable or unwilling to protect them. 

This decision on PSG has been a long time coming, but–at least in my opinion–it does not go far enough.

Guatemalan Women celebrate their new particular social group.
Guatemalan Women celebrate their new particular social group.

In 2004, in a case called Matter of R-A-, DHS acknowledged that domestic violence could form the basis for an asylum claim. In that case, DHS argued in a brief that R-A- should receive asylum based on domestic violence. In its brief, DHS defined the PSG as “married women in Guatemala who are unable to leave their relationship.” Sound familiar? And that was 10 years ago.

Matter of R-A- never resulted in a published BIA decision (though R-A- herself received asylum in 2009). Since the brief was made public in 2004, asylum attorneys have relied on it to advocate for their clients, presumably with some success (since there is no data on the number of cases granted based on domestic violence, it is impossible to know for sure).

To me, the PSG “married women in Guatemala who are unable to leave their relationship” is awkward and contrived. Moreover, to receive asylum based on a PSG, the applicant must show that she was persecuted “on account of” her membership in the PSG. In other words, the persecutor harmed the applicant because she is a member of the PSG. I am not convinced that the husband was harming A-R-C-G- because she was a married woman who was unable to leave the relationship. He would have harmed her whether or not she was married and whether or not she was able to leave the relationship. The husband may have had access to A-R-C-G- because he was married to her and because she was unable to leave, but he was not motivated to harm her for those reasons.

It seems to me that there is a simpler, more elegant PSG that would have been appropriate for this case: “Women.” I suspect that I am not alone in this opinion. In amici curiae briefs, counsels for the American Immigration Lawyers Association, the UN High Commissioner for Refugees, and the Center for Gender & Refugee Studies argued that gender alone should be enough to constitute a PSG. Also, at least one federal circuit court (you guessed it – the Ninth) has held that “women in Guatemala” might constitute a particular social group.

“Women” makes sense as the PSG in this case. The evidence in the case suggests that the husband would have persecuted any woman who he was with–whether or not she was married or able to leave him. Further, country condition evidence from Guatemala makes clear that women in that country live in dire circumstances. In its decision, the Board notes that Guatemala “has a culture of ‘machismo and family violence,'” including sexual offenses and spousal rape. The victims of this violence are, for the most part, women. And, by the way, they are not just “Guatemalan women.”  I imagine that if a Salvadoran woman, or a Nicaraguan woman, or a Japanese woman lived in Guatemala and integrated into the society, she would face the same problems as a Guatemalan woman. For this reason, the PSG should be “women,” as opposed to “Guatemalan women.”

But the BIA was not willing to go that far. After noting that counsel for Amici argued in favor of gender alone as the PSG, the Board held, “Since the respondent’s membership in a particular social group is established under the aforementioned group, we need not reach this issue.”

Perhaps that is the way of things. It’s best not to push the law too far, even if it makes logical sense, and even where it would protect additional people. A decision granting asylum to women (or men) who face persecution solely because of their gender would likely open the door to many more asylum seekers. Given the current state of affairs in the asylum world–the border crisis, partisan scrutiny from Congress, the backlog–maybe it’s best not to open the door too far. Maybe a relatively limited decision like Matter of A-R-C-G- is the best we could have hoped for.

I don’t mean to minimize the importance of A-R-C-G-. It is obviously a great win for the alien in that case (though the decision does not finally grant her asylum, it seems very likely that that will be the end result), and it will certainly help many women who face harm from domestic abusers. However, the decision codifies a landscape where women–many without the resources available to people like A-R-C-G- and R-A—will be forced to articulate complicated PSGs and demonstrate that they are members of those PSGs. I am not sure how many poor refugee women will actually be able to do all that.

A-R-C-G- was persecuted because she was a woman. Not because she was a Guatemalan woman, not because she was married, and not because she was unable to leave her husband. Matter of A-R-C-G- is an important step towards protecting women victims of domestic violence. Maybe next time, the BIA will take a giant leap.

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In (Attempted) Defense of Banning Iranian-American Immigration Judges

by Jason Dzubow

If you follow the news from the Executive Office for Immigration Review or EOIR–the office that oversees the Immigration Courts–you are aware of the recent lawsuit filed by Judge Afsaneh Ashley Tabaddor. Judge Tabaddor is an IJ in Los Angeles. She was appointed in 2005 and has been serving ever since. Judge Tabaddor also happens to be Iranian-American.

Judge Tabaddor has been mistreated by the executive branch. We hope she doesn't leave, and we are root-ing for her.
Judge Tabaddor has been mistreated by the executive Branch. We hope she doesn’t Leave. We are Root-ing for her.

According to Judge Tabaddor’s complaint against EOIR, trouble began for her in the summer of 2012 when the White House–considered by some a radical Muslim organization–invited her to attend a “Round Table with Iranian-American Community Leaders.” After some hemming and hawing over the nature of the event, EOIR granted the Judge leave to attend. But afterward, EOIR banned Judge Tabaddor from adjudicating cases involving nationals from Iran. So in other words, an Iranian American Judge who is active in her community is not permitted to hear cases where the alien is from Iran.

On it’s face, EOIR’s decision seems completely ridiculous and indefensible. It would be like forcing members of the National Association of Women Judges to recuse themselves in cases involving women, or stopping members of a Jewish judges association from hearing cases involving Jews, etc., etc. But can EOIR’s decision somehow be justified? Does it make sense to ban an Iranian-American who is involved in her community from hearing cases form Iran? Permit me to try to make that argument (as an asylum lawyer, tilting at windmills is my specialty).

Perhaps EOIR is concerned about the Judge because Iran is considered our enemy (or–on a good day–our rival). Allowing Judge Tabaddor to hear Iranian cases would be like allowing an American originally from the Eastern Block to serve in the White House during the Cold War (Zbigniew Brzezinski) or like allowing a German-American to lead the fight against Germany in WWI (John J. “Black Jack” Pershing) or against the Nazis in WWII (Major General Carl Spaatz). Hmm, maybe that argument doesn’t work so well after all. Let me put it another way. If you are at war with Japan, you’d better imprison all Japanese-Americans. Wait. Maybe that is not such a good argument either. Let’s try this a little differently. 

It could be that EOIR is worried about the appearance of bias. Appearance is very important for judges. If an IJ is perceived as biased, it reduces our confidence in her decisions. It would be as if five Republican-appointed judges voted to end an election recount, giving the victory to the Republican presidential candidate. Oy. Let me give you a better example. Maybe it would be like allowing a Russian figure skating judge who is married to the director of the Russian Figure Skating Association to serve as a judge at the Sochi Olympics. And then the Russian skater miraculously wins. Harrumph. I guess that one doesn’t work too well either. Maybe we should look at the problem another way.

What if we assume that Judge Tabaddor is, in fact, biased in favor (or against) Iranian respondents. If that is the case, why should the recusal order be limited to cases from Iran? Iran and Iraq fought a war recently, so probably the IJ is biased against Iraq and should not hear cases from that country either. Iran also fought a war with Greece back in the day, and if I were Iranian, I’d still be bitter about the Battle of Thermopylae. So the Judge should also be banned from hearing cases involving Greeks, or at least Spartans. Iran has endured invasions by Mongols and Arabs, so Judge Tabaddor obviously should not hear Mongolian or Arab cases, and since Mongolians were mixed in pretty good with the Chinese, we’d better also ban her from Chinese cases–just to be safe. And of course, Iran doesn’t much like Christians, Baha’is or Jews, so the Judge should probably be kept away from cases involving those faiths. In addition, Iran has disputes with Russia, Azerbaijan, Turkmenistan, and Saudi Arabia. The Judge would have to be banned from hearing cases involving those nationals as well. And don’t even get me started about cases involving Israelis. So basically, if Judge Tabaddor is biased, as EOIR seems to assume, the only cases she should decide involve people from Guyana or New Zealand. And maybe São Tomé, but I’m not even sure that’s a country.

In the end, I really don’t know whether Judge Tabaddor’s lawsuit will succeed. IJs exist to implement the authority of the Attorney General. If the AG chooses to prevent certain IJs from reviewing cases from certain countries, that may be within his discretion. While the law may not be clear (at least to me), I have no doubt about which side is right. If an IJ behaves in an inappropriately biased manner, she should be removed from her job. But where–as here–there seems to be no question as to the Judge’s integrity, her docket should not be restricted in this insulting and discriminatory way.

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Towards a New Definition of “Refugee”

by Jason Dzubow

There are, in effect, two definitions of “refugee.” There is the legal definition from the 1951 Refugee Convention (codified in U.S. law at INA § 101(a)(42)), and then there is the lay person’s definition.

The legal definition of refugee includes:

any person who is outside any country of such person’s nationality… and who is unable or unwilling to return to… that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

The lay person’s definition is much broader and includes basically anyone who has been forced to flee from their home due to war or an environmental or man-made disaster. Many people who have been displaced by conflict or catastrophe are refugees under the lay definition, but not under the legal definition.

Refugees or "refugees"?
Refugees or “refugees”?

The mass movement of people–especially young people–escaping violence and poverty in Central America has gotten me thinking about these definitions. As our country struggles to respond to the influx, I wonder whether we need a new definition of “refugee.”

Under current U.S. law, if a person is physically present in the country and meets the legal definition of refugee, he will receive asylum. This is quite a nice benefit to receive. People who get asylum are able to remain here permanently. They can eventually become residents and later citizens. They can travel, work, and attend school. They can sponsor certain family members to join them in the United States. They are sometimes eligible for government assistance. These generous benefits are a “pull” factor because they encourage refugees to seek asylum here (as opposed to staying put or seeking asylum somewhere else). The benefits also create an incentive for people to file fraudulent asylum claims.  

To guard against fraud, we have created an elaborate bureaucracy to evaluate the veracity of asylum claims. We have Asylum Officers, Immigration Judges, the Board of Immigration Appeals, the various DHS Chief Counsels’ offices (basically, the prosecutors in Immigration Court), the Forensic Document Lab, and an extensive system of security background checks. All this costs money and takes time. But I can imagine an alternative to this system.

We could simply categorize as a “refugee” anyone who says that they are afraid to return home. In other words, if someone requests asylum in the United States, they would automatically be granted asylum. This sounds like a stupid plan, you say? Everyone and their brother would seek asylum here, including terrorists and criminals. Worse, it would put asylum lawyers out of business. Maybe so, but indulge me for a moment.

There are some obvious benefits to this idea. For one thing, it would completely eliminate the bureaucracy associated with adjudicating asylum applications. Second, we would never mistakenly return a legitimate refugee to her country. Third, people who do not meet the legal definition of refugee, but who fear return for some other reason, could find refuge in the U.S.

There are also some obvious drawbacks. First, if everyone who asked for asylum got it, very likely the number of asylum seekers would increase. Second, terrorists and criminals might exploit the asylum system to enter the United States. Third, we would lose the ability to control who and how many people come to our country.

But what if we could reduce the drawbacks and keep the benefits?

The main question is how to deal with the likely increased demand under this new system? The easiest way to reduce the “pull” of asylum would be to reduce the benefits of asylum. Basic economic theory suggests that if it is easier to obtain asylum, more people will come here, but if the benefits are reduced, less people will come here. So in order to offset the increased number of asylum seekers caused by reducing the barriers to asylum, we would need a corresponding reduction in benefits. How much of a reduction will provide this balance, I don’t know. But let’s say we reduce the benefits to the bare minimum: People who come here for asylum will be placed in a refugee camp indefinitely, they will receive only the supplies they need to survive, and they can leave only to return to their home country or to resettle in a third country. This is more-or-less the situation for Syrian and Iraqi refugees in places like Jordan and Turkey. My guess is that if this regime were strictly enforced, the overall effect would be to reduce the number of people seeking asylum in the U.S. In other words, the ease of obtaining asylum would be more than offset by the lack of benefits. If this is correct, it means we could offer something more than the bare minimum benefits without causing a major increase in the number of people seeking asylum here. The difficult question is how to find the equilibrium.

Another important drawback to my system is that it might attract criminals and terrorists. Of course if these people were confined to refugee camps, their ability to harm us would be quite limited.

Finally, my system might cause us to lose control of our border, since anyone claiming asylum would get it. But again, if the asylum seekers were confined to camps, and then resettled by the UN to third countries or to the United States, we might actually end up with a better controlled border since we could admit as many or as few people for resettlement as we choose.

Depending on the number of people arriving at our borders, it may be impossible to offer them the full range of benefits and due process protections that we have previously given to asylum seekers. But I don’t think we’re there yet–although there has been an increase in the number of asylum seekers arriving in the U.S., the numbers are still nothing close to what countries like Jordan and Turkey have been experiencing. However, if we continue seeing large numbers of people arriving in the U.S. to seek asylum, we may need to start considering alternatives to our current system.

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Premium Processing for Asylum Seekers

by Jason Dzubow

For certain applications with USCIS, the applicant can pay an additional fee of $1,000.00 and receive “premium processing.” For people seeking an H1B visa or a green card based on extraordinary ability, payment of the premium processing fee is the norm, and the result is that USCIS responds to the application (sometimes with an approval, other times with a request for additional evidence) within a few weeks. So should premium processing be available for people seeking asylum?

Waiting in line is a poor man's game.
Waiting in line is a poor man’s game.

There are certainly arguments against such a scheme: Humanitarian benefits should not be for sale, it is unfair to privilege wealthy applicants over poor applicants, asylum is somehow cheapened by making it more expensive. But given the current state of affairs in the asylum world, I think that USCIS should allow premium processing for asylum seekers who want it and can pay for it.

First, the current state of affairs: The asylum system is groaning under the weight of too many applications. Thousands of cases from 2013 are still lost in limbo, and–at least based on my observation of the local office here in Virginia–we seem to be on the verge of another slow down. People separated from family members have no recourse except to wait. And worse, they have no idea how long they will have to wait. The Asylum Offices have created “short lists” where (supposedly) you can put your name on a list, and if a slot opens up, you will be interviewed. So far, at least for my clients, this seems to work not at all. The bottom line is that we are facing very long delays and applicants and their family members are suffering severely.

So how would premium processing help?

Obviously, for those applicants who could pay the fee (whether $1,000.00 or some other amount), their cases would be given priority. This would benefit those applicants who pay the fee, but–if implemented correctly–it would also benefit people who do not pay the fee because the premium processing cases would be removed from the general queue, which would free up interview slots for everyone else.

Quantifying the effect of a premium processing fee is a bit tricky, however. For one thing, it is not easy to find asylum statistics from the government. A good guess is that between 3,500 and 4,000 people per month file affirmative asylum cases. That is approximately 40,000 people per year. If half those people paid a premium processing fee of $1,000.00, an additional $20 million would be pumped into the system. This would be a significant increase in funding. As best as I can tell, the budget for asylum and refugee operations for FY 2014 is about $236 million, so an additional $20 million for asylum operations alone would be a major increase (the asylum and refugee budget is paid for by USCIS application fees from non-asylum cases, so the cost to U.S. tax payers is minimal). With this additional money, the Asylum Offices could hire more officers, provide resources to expedite background checks, set up a system so applicants could track the progress of their cases, and even provide free donuts and coffee to attorneys waiting for their clients’ interviews. In other words, the money could be used to improve the system for everyone, including those who do not pay the fee.

Of course, we don’t know how many asylum applicants would (or could) pay a premium processing fee, but I suspect that many would pay. Remember that asylum applicants differ from refugees in that they have come to the United States on their own. Whether they came legally or illegally, it is likely that they paid for their journey here. Also, many asylum applicants pay attorneys or notarios to prepare their cases. My guess is that many such people would be happy to pay a fee if it meant that their cases would be adjudicated more quickly.

I must admit that I feel a bit uncomfortable about asking asylum applicants to pay the government to adjudicate their cases (which is maybe ironic, since I ask them to pay me). But given the difficulties caused by long delays (separation from family, stress, uncertainty), I feel that the benefits of a premium processing system would far outweigh any disadvantages.

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