Chaos in Court

by Jason Dzubow

A few months ago, I wrote that what applicants and lawyers need from the Biden Administration is predictability. Unless we know what to expect from “the system” and when to expect it, people cannot properly prepare their cases or have them fairly adjudicated. Unfortunately, what we have been seeing recently is the opposite of predictability–it is chaos, at least at the Executive Office for Immigration Review (EOIR – the agency that oversees our nation’s Immigration Courts). Here, I will offer a few pieces of evidence in support of this proposition–

Exhibit A: The Immigration Court (or lack thereof) in York, PA

The Immigration Court in York, PA is located inside the York County Prison, which houses ICE detainees. After recent negotiations between the feds and the county failed to produce an agreement, ICE announced that all its detainees would be transferred to other facilities by August 12. With immigrant detainees set to leave York, EOIR informed court staff on June 30 that the Immigration Court would close by late July, and that all staff needed to take assignments at other courts (often in distant locations) or find new jobs. Besides being disruptive and demoralizing for EOIR staff (many of whom have been working in York for years, and have their homes and families there), the abrupt decision to close the court has left noncitizen detainees isolated from their families and their lawyers, and will make preparing their cases even more difficult. (more…)

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The Art of Denying Asylum

by Jason Dzubow

Preparing an asylum case is a bit like building a fortress. You make the walls as strong as you can, re-enforce weak points, and hope for the best. It’s the job of the Asylum Officer, the DHS attorney (the prosecutor), and the Immigration Judge to probe for weaknesses and, where appropriate, break down the defenses. If they succeed, you lose your case. So here’s my theory: An adjudicator who wants to deny asylum can deny asylum. Some cases may be harder to deny than others, but a smart decision-maker can punch holes in even the strongest and most well-prepared asylum case.

In my own practice, I recently lost a case where the Immigration Judge meticulously deconstructed the asylum claim in order to deny relief. This was one of those cases that some IJs would have granted, and others would have denied. It so happens that our IJ has a 93.5% asylum denial rate, and so the odds of success were always pretty slim. But the decision got me thinking about how judges and Asylum Officers decide cases, and about whether I can do more to prevent future losses. (more…)

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Back to Bad

by Jason Dzubow

Last week, Attorney General Merrick Garland issued two decisions reversing Trump-era cases that limited asylum eligibility. Here, we’ll discuss those cases and how the AG’s decision will affect asylum seekers.

The first case, Matter of A-B-, 28 I&N 307 (AG 2021), involves asylum for victims of domestic violence. There is a long history here, but the basic story is that victims of domestic violence have traditionally had a hard time qualifying for asylum. Through a series of cases between 2004 and 2014, the government created a (convoluted) path for victims of DV to receive asylum by classifying them as a “particular social group” (to qualify for asylum, an applicant must show that the feared harm is “on account of” race, religion, nationality, political opinion or particular social group). While this was an important step for DV asylum seekers, presenting a successful case was still very difficult, especially for people without a lawyer (probably the majority of applicants). The Trump Administration re-visited DV asylum starting in 2018, and essentially erased the gains made during the prior decade and a half. Now, the pendulum has swung once again, and the Biden Administration has reversed the Trump-era reversal. In other words, we are back to the not-so-great place where we were in 2017. This means that victims of domestic violence can once again obtain asylum, assuming they can satisfy the narrow definition created prior to President Trump. (more…)

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The Return of Prosecutorial Discretion

by Jason Dzubow

The Trump Administration’s onslaught of anti-immigrant rule-making, combined with increased enforcement, pushed the Immigration Court backlog to new heights–there are currently more than 1.3 million noncitizens in removal proceedings.

When Joe Biden came into office, we were hoping his Administration would move quickly to un-do the damage caused by his predecessor, and to issue new, badly-needed administrative (and hopefully legislative) changes. To be fair, there have been some changes, especially to the more high-profile Trump-era policies such as the Muslim travel ban and the Migrant Protection Protocols. Progress in other areas has been slower, but now–after more than four months of deliberation–we have a new DHS memo on prosecutorial discretion.

The purpose of the memo is to guide DHS/ICE attorneys (the prosecutors in Immigration Court) about their enforcement priorities, i.e., who should and should not be a priority for deportation. The ability of prosecutors to make these decisions is important, since there are not enough resources to deport everyone, and DHS needs to decide where to focus its efforts. The new memo sets forth how DHS attorneys should exercise their “prosecutorial discretion” or “PD.”

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Dealing with Delayed Decisions

by Jason Dzubow

Based on the latest data (from July 2020), there are more than 22,000 asylum cases that have been interviewed, but where the Asylum Office has not yet issued a decision. Some of these cases have been pending decisions for months or even years. What’s the reason for this post-interview delay, and what can you do if you were interviewed, but have not received a decision?

First, let’s talk about some reasons for delayed decisions. One common reasons is the security background check. Before a case can be granted, each applicant is subject to a background check. This somewhat mysterious process involves reviewing multiple government databases to determine whether there are any “hits,” meaning that the person’s name or information raises a security concern. Such checks are largely outside the control of the Asylum Office, and can cause significant delay. At least in my experience, the delay tends to be worse for people (especially men) from majority Muslim countries. While background check delays are common for Asylum Office cases, they are almost non-existent for Immigration Court cases. Why this should be, I do not know. I once asked a prior Asylum Division Director about the discrepancy, and the only explanation I received was that the background checks are different at the two different agencies.

Another reason for delay is that each case needs to be reviewed by a supervisor, and the Asylum Offices are apparently short of supervisors. Related to this is the high turnover rate for Asylum Officers. When officers leave without completing a case, this seems to cause additional delay (since another officer has to review the case, get up to speed, and then complete the work). (more…)

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My Friend Got an Asylum Interview, But I Never Did

by Jason Dzubow

Here’s a question that I often hear: My friend filed for asylum after me and she already had her interview. Why didn’t I get my interview yet? As with most asylum-related questions, the answer is, it’s complicated.

As you probably know, the Asylum Office is operating under the LIFO–Last-in, First-out–system. This means that new cases get priority over old cases. LIFO was implemented in January 2018 with the hope that it would reduce fraudulent asylum filings. The idea is that if the Asylum Office can quickly interview and deny fake cases, it will reduce people’s incentive to file such cases. In turn, this will lead to fewer new asylum applications, which will reduce the backlog and help legitimate asylum applicants.

Of course, things did not work out as planned. The first problem is that the premise of LIFO is simply wrong: The system is not being overwhelmed by fake asylum cases. Even if it were, LIFO provides no real disincentive for applicants to file fraudulent cases. That’s because from nearly the moment it was implemented, LIFO didn’t work. There were always too many new cases to interview. As a result, some new cases got fast, LIFO interviews; others did not. Since there was never a very high probability of receiving a quick interview, LIFO did little to dissuade the hordes of supposedly-fraudulent asylum seekers from filing their cases.

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What Asylum Seekers and Their Lawyers Need from President Biden: Predictability

by Jason Dzubow

Just before Christmas 2020 and without any advance warning, the Trump Administration changed the deadline for submitting documents to Immigration Court. Previously, documents were due 15 days before the Individual Hearing. The new rule requires that documents now be submitted 30 days before the Individual Hearing. For busy lawyers, who have many cases and many different deadlines, this was equivalent to throwing a wrench into the gears of the immigration machine. Changing a deadline like this has a ripple effect, and–more than two months later–we are still adjusting to the new rule.

Of course, this was not the first (or worst) effort by the prior Administration to sabotage the immigration system, but it does illustrate how a small procedural change can have an outsized impact: When a lawyer is struggling to adjust to a new rule, it affects the lawyer’s ability to do his best work, and this in turn has potential negative consequences for a client’s case. (more…)

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Torture Survivors Seeking Asylum Must be a Priority in Immigration Overhaul

by Jason Dzubow

This post is by Andrea Barron, the Advocacy Program Manager at the Torture Abolition and Survivors Support Coalition (TASSC International), based in Washington, DC.

President Biden has sent Congress a sweeping immigration bill that embraces America’s commitment to immigrants, a commitment the Trump Administration tried to destroy. The legislation outlines a pathway to citizenship for 11 million undocumented individuals and provides $4 billion to Central American countries to reduce the violence and poverty that push so many to emigrate. It also increases the number of judges in immigration courts. These are welcome proposals.

But the bill promises little to torture survivors and other affirmative asylum seekers. It fails to address a hidden asylum crisis in our country, a crisis not as visible as the migrants being detained by Immigration and Customs Enforcement (ICE). Many torture survivors and thousands of other affirmative asylum seekers have been waiting four, five, and even six years to have their cases heard in the Asylum Office, a division of the U.S. Citizenship and Immigration Services (USCIS). (more…)

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Fixing Asylum Part 4: Immigration Court

by Jason Dzubow

There are currently over 1.2 million cases pending before our nation’s Immigration Courts (how many of these cases involve asylum, we do not know). The average wait time for a case is 849 days. What has caused this large backlog, and what can be done to alleviate the long waits in Immigration Court?

There are a number of reasons for the Immigration Court backlog. As with the Asylum Office, the basic reason is that there are too many cases and not enough Immigration Judges (“IJs”) and support staff. But a significant aggravating factor is what Judge Schmidt calls “aimless docket reshuffling” or ADR, which he defines as “arbitrarily or maliciously moving cases around without actually deciding them.” In other words, different Administrations have different priorities, and when Administrations change (or change their priorities), cases get moved around in ways that do not result in their completion, but do result in significant delay. The Obama Administration was responsible for its share of ADR, but the Trump Administration–with its decision to make every case a priority–has turned ADR into high art. Other aggravating factors include increased resources for enforcement without a commensurate increase for the Immigration Courts and a significant influx of asylum seekers from Central America that began in about 2012. One last factor is EOIR leadership (EOIR is the Executive Office for Immigration Review – the agency that oversees the Immigration Courts), which under the Trump Administration has been composed of partisan loyalists who lack the competencies needed to run a large organization.

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Fixing Asylum Part 3: The Asylum Office

by Jason Dzubow

According to the most recent data, as of “July 31, 2020, USCIS had 370,948 asylum applications, on behalf of 589,187 aliens, pending final adjudication.” “Over 94% of these pending applications [about 348,691 cases] are awaiting an interview by an asylum officer.” The remaining cases–approximately 22,257–have been interviewed and are waiting for a decision.

In terms of resources, the most recent information I could find is from May 2019. At that time, there were 763 Asylum Officers and 148 supervisory officers. While the majority of these staff members was devoted to interviewing affirmative asylum seekers, “over 200 officers” were assigned to conduct credible fear interviews at the border (a credible fear interview or CFI is an initial evaluation of asylum eligibility). Assuming everything remains the same (meaning that there are about 563 officers available for affirmative cases) and assuming each officer conducts eight interviews per week, it would take about 15 months to get through the entire backlog–if no new cases enter the system.

Realistically, though, new cases are continuously being filed, Asylum Officers probably can’t adjudicate eight cases per week for 52 weeks a year, and–given the mess at the Southern border and President Elect Biden’s plan to send more resources to that region–it is likely that many more than 200 officers will be assigned to CFIs (which will make them unavailable for “regular” affirmative asylum interviews). In short, even if the pandemic magically disappears, it seems unlikely that we can get through the backlog anytime soon. We are today facing the same problem that has dogged the asylum system since at least 2013: There are too many cases and not enough officers.

So what can be done?

Hire More Officers: One obvious solution is to hire more Asylum Officers. While the President Elect has not indicated whether or not he would hire more AOs, he has set forth an ambitious humanitarian agenda for the U.S.-Mexico border, and it seems impossible that he could fulfill that goal without hiring many more Asylum Officers. Of course, this would cost money, and it is unclear whether USCIS has the means to pay for more officers or whether Congress would be willing to increase the agency’s budget.

Even if there is no additional money available, there are steps Mr. Biden can take to improve the asylum system.  

More Efficient Scheduling and Shorter Interviews: The data I found (pre-pandemic) shows that roughly 8% of asylum applicants are “no shows” for their interviews and another 15% cancel their interviews (what percentage of these are rescheduled, I do not know). This makes sense, given the long gap between filing for asylum and attending an interview: People leave the U.S. or find other ways to obtain status here; others fail to update their address and so never receive notice of the interview. To mitigate this problem, Asylum Offices schedule more interviews than they have the capacity to conduct, with the expectation that some applicants will not appear. This seems to me a huge waste of energy. Why not call applicants a few weeks in advance to determine whether they intend to appear for their interview? This should be done after the interview notice is mailed out, and that notice should indicate that the applicant will receive a call from the Asylum Office. Applicants who fail to respond to the phone call can be rescheduled and sent a warning letter by mail. Those who still do not respond can then be referred directly to Immigration Court. Where possible, the calls and notices should be in the applicant’s native language.

There are other benefits to calling applicants prior to the interview: They can be reminded to submit all evidence in advance, and can be queried about what language they will speak at the interview. They can also be told to review the I-589 form and determine in advance what updates and corrections are needed. Better yet, the asylum interview notice can include a form to update the I-589, which is often submitted years before the interview. While not all applicants will be able to complete such a form on their own, many can, and this will save significant time at the interview.

Another way to save time at the interview would be to include a copy of the “bar” questions along with the interview notice. The “bar” questions determine whether a person is barred from receiving asylum (because they are criminals or terrorists, for example). Why not require applicants to review these questions ahead of time, and then certify at the interview that they read and understood each question? Most people will answer “no” to all the bar questions, and if the officer has specific concerns, she can raise those at the interview. Also, while we’re on the subject of bar questions, why do the officers need to ask these questions to children? I’ve seen officers question dependent children as young as three or four years old about whether they are terrorists. It’s just plain silly (though it can be entertaining). We would save a lot of time and trouble if parents could answer these questions for their minor children, or at least for children under a certain age–say 14 or 15.

LIFO vs. FIFO: Another issue related to scheduling is The Great LIFO-FIFO Debate–whether cases should be interviewed in the order received (first-in, first-out or FIFO) or whether the newest cases should receive priority (last-in, first-out or LIFO). All Asylum Offices are currently operating under the LIFO system. The logic is that interviewing new cases first will deter fraudulent asylum seekers, since they won’t be guaranteed a years-long wait for their interview (during which time they can live and work in the U.S.). The Asylum Division believes LIFO is working, as there was a 30% drop in new filings after it was implemented. However, I hope they will revisit this finding. My sense is that any decrease in filings was unrelated to the LIFO policy and instead came about for other reasons, such as fewer people arriving in the U.S. due to stricter visa requirements.

Also, from the perspective of asylum seekers, LIFO is very unfair. Old cases are given the lowest priority, meaning many people will (seemingly) never get to the front of the line. These applicants are facing severe hardships, including separation from family and endless uncertainty. At a minimum, a certain percentage of officers should be assigned to work on backlog cases, starting with the oldest. Better yet, we should return to FIFO and the Asylum Office Scheduling Bulletin, so we will have a more orderly and predictable process for scheduling interviews.

Create Rules for Expediting: One final point about scheduling interviews: We need a more formal system for expediting cases. Currently, it is possible to expedite, but there really are no rules about who is eligible to expedite or about what constitutes a valid reason to expedite. The predictable result is that many people try to expedite, which wastes Asylum Office staff time and also makes it more difficult for the most needy people to expedite their cases. There should be a national policy with publicized criteria about who is eligible for expedition. In my person opinion, the first priority should be people who are separated from their family members, especially minor children. For me, a distant second is a person with a documented mental or physical health issue. Until the Asylum Offices can expedite all the people in these two categories, I see no reason to allow for any other category of applicant to request expedited processing.

Premium Processing: A more radical idea to address the backlog–and one that I’ve been pushing for a while now–is premium processing for asylum seekers. Premium processing already exists for several USCIS forms, and allows an applicant to pay an additional fee (currently between $1,500 and $2,500) for faster processing of her case. Affirmative asylum seekers–in contrast to refugees–have paid their own way to the United States, and so presumably, many of them could afford an additional fee for premium processing. Also, while the idea of asylum seekers paying for their cases may seem unpalatable, the Trump Administration has already implemented a non-waivable $50 fee for all asylum applicants (as of now, that fee has been blocked by a federal court), and so the taboo of paying for humanitarian protection has already been broken. Thus, as I see it, there is no valid objection to implementing premium processing for asylum seekers, and–given the overwhelming humanitarian need–it is a solution whose time has come.

How would premium processing help? For those who pay, their cases would be interviewed more quickly. How quickly, I do not know, but premium processing for other USCIS forms is currently 15 days. I doubt that time frame would be realistic for an asylum case, but perhaps 60 or 90 days would be achievable. Even those who cannot pay would benefit, as the infusion of money into the system would benefit all applicants. An added benefit from the government’s viewpoint would be that faster processing would–if we accept the LIFO logic–help discourage fraudulent applications. So premium processing is a win all around: For the applicants who pay, for those who do not pay, and for the U.S. government.

Eliminate the Asylum Office: A final idea–perhaps the most radical of all–is to eliminate the Asylum Office altogether, at least for most cases. Under the current system, an applicant files an asylum case, and if he loses, his case is usually referred to Immigration Court where an Immigration Judge reviews the case de novo and issues a brand new decision. As an advocate, I am grateful for a second chance to present my clients’ cases. But in terms of “the system,” this type of redundancy is not very efficient. One solution might be to shift all asylum cases where the applicant is out-of-status to the Immigration Court. Or maybe just leave vulnerable applicants–such as minors–at the Asylum Office. While this idea has been floating around for years, it is still unclear whether it would result in more or less efficiency. In any event, given the current mess, nothing should be off the table, and the idea of (mostly) eliminating the Asylum Office might warrant further study.

For the sake of asylum seekers and their families, and for the integrity of our humanitarian immigration system, we need major changes to the affirmative asylum system. Perhaps some of these ideas can contribute to that effort.

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On Appeal at the BIA

by Jason Dzubow

If you lose your case in Immigration Court, you can appeal to the Board of Immigration Appeals (“BIA”). Conversely, if you win your case and the DHS attorney (the prosecutor) is unhappy with that outcome, DHS can appeal. Here, we’ll talk about what happens during an appeal to the BIA.

Once the Immigration Judge (“IJ”) makes a decision, the parties have 30 days to file an appeal to the BIA. The IJ should indicate on his decision when the appeal is due, meaning the appeal must be received by the BIA on or before the due date. Otherwise, the IJ’s decision is final and the case is over. Appeals are filed using Form EOIR-26. The fee is currently $110 (check to “United States Department of Justice”) or you can request a fee waiver.

The EOIR-26 is the notice of appeal. On the form, you must indicate the reason(s) why you are appealing. Here, you have to be specific, as indicated in the form instructions. If not, the BIA could dismiss your appeal on that basis alone. When I file an EOIR-26, I list the reasons for the appeal and I also note that we “reserve the right to raise additional arguments in our brief.” Next, you have to check a box indicating whether or not you want oral argument. The BIA rarely holds oral arguments (where the attorneys come before Board Members to discuss the case), and so whether you check yes or no probably doesn’t make much difference. But if you have a burning desire to present your case in person, check “yes” and maybe you’ll be invited to Falls Church for an oral argument. The EOIR-26 also requires you to indicate whether you will file a brief. A “brief” is a legal argument explaining why the IJ’s decision should be overturned. While you can file the brief and the Notice of Appeal together, it is more common to file the brief later on. Be aware that if you check “yes” to the brief, you will be required to file a brief, and if you fail to do so, your appeal will be dismissed.

BIA Board Members listen to a rare oral argument.

The EOIR-26 should be mailed to the BIA at the address specified in the instructions. Include with the appeal a copy of the IJ’s decision. If you have a lawyer, the lawyer should include an EOIR-27, appearance of counsel form. You have to send a copy of the entire packet to the DHS attorney’s office (the office of the “prosecutor” who litigated your case before the IJ). You can find their address here.

After the EOIR-26 is filed, you will receive a receipt. You are allowed to remain in the United States while the appeal is pending. You can also renew your Employment Authorization Document (“EAD”) while the appeal is pending.

If you indicated on the EOIR-26 that you plan to file a brief, the BIA will send a briefing schedule. How long it takes to get the briefing schedule is hard to predict. For a detained case, it may take a month or two, but for a non-detained case, it probably takes anywhere from six to 18 months. Along with the briefing schedule, you will receive a transcript of the Immigration Court case. This document contains all the discussions that took place at each appearance before the IJ. Depending on the case, it is usually very helpful to have the transcript, as oral statements made in court are often relevant to the argument you will make on appeal. For this reason, we do not submit a brief when we file the EOIR-26. We wait until we have the transcript and can then submit a more complete–and hopefully more convincing–argument.

Once the briefing schedule arrives, you have 21 days to file the brief (why they give so little time to write the brief, I do not know, but I complained about it here). You can ask for an additional 21 days, but you have to articulate a reason why you need more time.

The brief is the heart of the appeal. In it, you explain why the IJ erred and ask the BIA to overrule the court’s decision. You can see a sample brief here. 

Some types of IJ decisions are easier to overturn than others. If the judge denied your case based on credibility (in other words, because the IJ thinks you lied), the BIA will only overturn the decision if it is clearly erroneous. On the other hand, if the IJ found you credible, but determined that you did not meet the legal standard for asylum, the BIA reviews the decision “de novo,” meaning that the Board will make its own decision and will not defer to the reasoning of the IJ. Put another way, the standard of review for factual errors is high and for legal errors is lower, and so in general, it is easier to win an appeal where you are arguing that the IJ made an error in interpreting the law rather than an error assessing credibility.

All that said, it is difficult to win any appeal at the BIA. That has always been the case, but the situation got worse in 2019, when the Trump Administration elevated six Immigration Judges known for their high denial rates to the Board. As a result, the Board is even more unlikely to overturn an IJ’s negative decision. Nevertheless, it can sometimes happen, and if you are not satisfied with the results in Immigration Court, you have the right to appeal. 

After you file the brief, the wait time for a decision is unpredictable. Cases where the non-citizen is detained are faster–maybe another one to three months (on top of the time you already waited before the briefing schedule was issued). Non-detained cases are much slower, and can take anywhere from six months to a year or more.

Finally, you will receive a decision. Typically, either the BIA dismisses the appeal, meaning that the IJ’s decision stands, or remands the case back to the judge to remedy any errors and correct the decision (and hopefully grant relief, but this is not guaranteed and varies by case).

If you do not like the BIA’s decision, you can file a petition for review to the federal appeals court with jurisdiction over your case. Filing such a petition does not stop ICE from deporting you, though you can (and should) ask the federal court to issue an order “staying” (preventing) your removal while the federal appeal is pending. Such cases are usually difficult to win, and they are procedurally complicated. You can learn more about litigating an immigration case in federal court here. From the federal appeals court, the next–and final–step is the United State Supreme Court. Very few cases reach that level, and so usually if the BIA is not the end of the road, the federal appeals court is.

Unfortunately, the entire immigration system is legally complex, and that is particularly true of BIA cases, where legal arguments may not be apparent to a non-lawyer. If you have a case before the Board, your best bet is to find a decent lawyer to help you. You can learn more about the whole process in the BIA Practice Manual. You may also be interested in the BIA Pro Bono Project, which matches attorneys with BIA cases (usually for noncitizens who are detained). Finally, there is this website, which helps non-represented applicants find a pro bono (free) lawyer. Despite all the difficulties, it is still possible to win at the BIA, and if you are not satisfied with the IJ’s decision, you can appeal and seek a better result.

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Book Review: My Trials by Judge Paul Grussendorf

by Jason Dzubow

Let’s take a break from the doom and gloom associated with the President’s ongoing effort to subvert our democracy and look at something a bit more cheery–A new edition of the book My Trials: Inside America’s Deportation Factories by Paul Grussendorf. Judge Grussendorf’s 35-year career has spanned the gamut in the asylum law field: Immigration attorney, clinical professor, Immigration Judge, Supervisory Asylum Officer, Refugee Officer. His book, styled a “legal memoir,” discusses his time as an advocate and adjudicator and gives an insider’s perspective on our nation’s very dysfunctional immigration system.

While this book is generally targeted at people in the profession, law students, and policy-makers, it would also be useful for asylum seekers themselves. In many respects, Immigration Judges, DHS attorneys (the “prosecutors” in Immigration Court), and Asylum Officers are an inscrutable bunch. What are they thinking about when they interact with applicants and make decisions? How do they relate to each other? What are their outside interests? Judge Grussendorf’s book shines a light on the world behind the façade, and somehow, seeing government adjudicators as human beings is comforting.

That said, the overall picture painted by Judge Grussendorf ain’t pretty. He lays bare an immigration system that is a mess, where many prosecutors are unyielding and out of control, families are ripped apart for no logical reason (other than arbitrary laws that require it), politicians intervene to deny due process and treat immigrants as tools in a partisan game, and where training for judges and DHS attorneys is completely inadequate. The Judge has particular scorn for those DHS attorneys who do not know the law or care about “doing justice,” but who instead simply seek to deport anyone who comes into their crosshairs.

One aspect of the book that held particular interest for me was Judge Grussendorf’s discussions of cases he denied when he was on the bench. Such cases help illustrate how most deportations do nothing to make our country safer or better. Instead, they result in families being separated and good, hard-working people being ripped from their homes. Our harsh and unforgiving immigration laws often prevent judges–including well-meaning judges like the author–from granting relief even when that is clearly the better outcome. Other times, the applicant simply does not qualify for relief. In such cases, Judge Grussendorf did as most judges do: He denied the case and went on with his daily business. On reflection, it is striking that a judge can order someone deported in the afternoon and then go for a pleasant jog in the evening, but that’s the job, and good Immigration Judges can separate their job from their life.

The new edition of My Trials is timely, in that it has come out when Joe Biden is (hopefully) about to take office. While the Democratic Platform laid out a bold agenda, it is unclear whether a President Biden would be able (given Congressional resistance) or willing (given Mr. Biden’s more cautious nature) to pursue that agenda. Judge Grussendorf weighs in with a number of his own ideas for reform–some will require Congressional action; others will not.

A page from My Trials, chosen completely at random.

One of his proposals that I found interesting was the idea of granting Mexico some type of most favored nation status and essentially legalizing all Mexicans in the United States (except for those with criminal issues). Given that so many Mexican nationals are currently in the Immigration Court system, if this group were legalized, it would go a long way toward relieving the overburdened courts.

Judge Grussendorf also proposes removing asylum cases from the court system and delegating them to “Special Hearing Officers,” which are essentially better trained and better paid Asylum Officers. This would allow asylum cases to be adjudicated in a non-adversarial manner while freeing up the Immigration Courts to deal with other types of removal cases and eliminating the current redundant situation where the same asylum case is heard by both an Asylum Officer and an Immigration Judge.

A final proposal that I’ll mention here is the Judge’s idea to greatly reduce the use of pre-trial detention in immigration cases. This proposal is not unique to Judge Grussendorf. However, his real-world experience adds weight to arguments that the practice is dramatically over-used and illogical, and helps illustrate how devastating incarceration is for the non-citizen and the non-citizen’s family (and on the non-citizen’s ability to prepare for his Immigration Court hearing).

I hope that Judge Grussendorf’s book–and particularly his policy proposals–get some attention as we try to reform our immigration system. It seems like too often in this debate we hear from policy advocates and politicians, but not from people who have worked in the trenches. We need voices like Judge Grussendorf’s as we hopefully enter an era where immigration reform is a possibility. 

My Trials sheds needed light on the absurd, cruel, dysfunctional, and unfair American asylum system. We are left with the impression that despite the systematic failures, justice in asylum cases is sometimes accomplished. When that happens, it is because individuals working within the system allow their humanity, decency, and respect for the rule of law to shine through and overcome the institutional barriers designed to prevent qualified applicants from receiving the protection they need and deserve. Judge Grussendorf is to be commended for his book, and for his effort to improve our nation’s asylum system.

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Expert Reports in Asylum Cases

by Jason Dzubow

In order to win an asylum case, you have to prove that there is a reasonably possibility you will face harm in your home country. To do this, you need evidence. Evidence about any past harm, evidence of threats against you, evidence of country conditions, etc. One piece of evidence that can be helpful is a report from an expert witness. Here, we’ll discuss the different types of expert reports and how they can help your case.

First, let’s briefly examine the difference between a fact witness and an expert witness. A fact witness is someone who knows about some aspect of your case. For example, maybe your cousin saw the police arrest you from a political rally. Your cousin knows about one piece of your story, and she can write a letter explaining what she knows. She is a fact witness. An expert witness usually does not have any first-hand knowledge of your case. Rather, according to the Federal Rules of Evidence, an expert is someone with “with scientific, technical, or other specialized knowledge” who can “assist the trier of fact to understand the evidence or to determine a fact in issue.” For example, if you are a member of a small ethnic group that is persecuted by your home government, you might find a professor who has studied your group and who can write a report explaining how the government treats members of your ethnic group. The professor is an expert witness.

In terms of admitting expert testimony, the Federal Rules of Evidence are not binding in Immigration Court or at the Asylum Office, but they do provide useful guidance. To be admissible under the Federal Rules, expert testimony must meet three criteria: (1) It must be relevant, meaning it will “assist the trier of fact to understand the evidence or to determine a fact in issue;” (2) The expert witness must be “qualified as an expert by knowledge, skill, experience, training, or education;” and (3) The expert’s testimony must be reliable, in that it “is based upon sufficient facts or data… is the product of reliable principles and methods, and [the expert] witness has applied the principles and methods reliably to the facts of the case.” The standard for admitting evidence in immigration proceedings is more liberal: The “sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.” Nevertheless, by following the guidance from the Federal Rules, you can help ensure that any expert testimony is given maximum credence by the fact finder.

The standard uniform for an expert witness.

Expert testimony is usually submitted in writing, in the form of an expert report. Accompanying the report is the expert’s CV or a statement of qualifications. It is also helpful to list instances where the expert has previously been recognized as an expert witness by other courts. Experts witnesses sometimes come to court to testify (or testify by telephone).

Expert testimony can be used to support different aspects of an asylum claim. Probably the most common expert report we use is a forensic medical or dental exam. In these reports, the doctor or dentist examines an asylum applicant’s injury to determine whether that injury is consistent with the applicant’s description of what happened. For example, we once had a client who was stabbed in the arm by members of the Taliban. He had a large scar running the length of his forearm. Of course, no medical expert can determine whether the injury was caused by the Taliban. But the expert can opine about whether the scar is consistent with a knife wound. Some experts can also discuss the approximate age of a scar based on its appearance. To create a report, the client would normally need to appear for an in-person examination and give a written description of the incident to the doctor. For this reason, we try to complete the client’s affidavit (or at least the relevant portion of the affidavit) before he goes to see the doctor. That way, he has a description of the incident to bring with him to the exam.

A subset of the forensic medical exams is an evaluation of female genital mutilation/cutting (“FGM/C”). Victims of FGM/C are often able to obtain asylum, and such exams are crucial to these cases. The World Health Organization has categorized FGM/C, and it is helpful for the doctor to explain what category the client’s FGM/C fits into.

Another common type of report that we see are mental health evaluations. These are created by psychologists or other mental health professionals to evaluate the psychological harm (such as post traumatic stress disorder) caused by persecution or the threat of persecution. Sometimes, these reports are generated during the course of treatment; other times, the client visits the mental health professional one or two times and obtains an evaluation for purposes of the asylum case. I tend to prefer the reports created by a treating professional, but in many cases, asylum applicants do not have access to health insurance and cannot afford treatment. In such cases, it may be possible to obtain a pro bono evaluation, which the client can use to bolster her asylum claim. We also use these reports to try to expedite asylum cases. For example, if the report indicates that the applicant’s mental health is being harmed by the long wait, we can sometimes convince the Asylum Office or the court to expedite the person’s case.

Country condition experts can also assist with asylum cases. In my own practice, I use such experts only rarely, as most of the information we need can be found on-line in human rights reports or news articles. However, in specialized situations, a country condition expert can be critical. For instance, an expert can help establish that a person belongs to a particular social group by showing that the society in question recognizes that social group as a distinct entity. Another example is where an expert is needed to interpret a foreign law, such as whether an adoption is legally valid.  

In short, there are many ways that experts can help bolster an asylum case. A good starting point for identifying experts and utilizing them effectively is the asylum expert handbook created by Professor Deborah M. Weissman and her students at UNC Chapel Hill Law School. Other helpful resources include the expert data base at the Center for Gender & Refugee Studies at UC Hastings Law School and the country condition expert list from the Rights in Exile Programme. Some experts on these lists work pro bono; others charge a fee.

Not all asylum cases need testimony from an expert witness (indeed, most of my own cases do not), but where it is needed, it can make the difference between a denial and a grant. 

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A New Rule for Interpreters at the Asylum Office (+ an Update on the Backlog)

by Jason Dzubow

Last week, USCIS announced a new rule for interpreters at Asylum Office interviews. Starting immediately, most asylum applicants should not bring their own interpreter to the interview, as had been the practice up until now. Instead, USCIS will provide an interpreter by telephone for most languages. The reason for the change is, of course, the coronavirus pandemic. This new rule will be in effect until at least March 22, 2021.

There are a few interesting tidbits contained in the rule’s preface, and here, I want to discuss those, as well as the effect of the new rule, plus some tips on working with telephonic interpreters.

One tidbit is statistical. To justify the new rule, USCIS cites some numbers indicating how serious the pandemic is. As of July 31, 2020, “there were approximately 17,106,007 cases of COVID-19 globally, resulting in approximately 668,910 deaths; approximately 4,405,932 cases have been identified in the United States, with new cases being reported daily, and approximately 150,283 reported deaths due to the disease.” This grim assessment by the U.S. government itself seems largely at odds with the picture painted by President Trump, who has pretty consistently underplayed the severity of the pandemic (at least in public, if not to Bob Woodward).

When using a telephonic interpreter, be sure to speak loudly into the phone.

Another interesting tidbit relates to the affirmative asylum backlog. Since the advent of the Trump Administration, the Asylum Office has become more tight lipped about its data, and so we receive fewer updates about the backlog (or anything else). But according to the new rule, as of “July 31, 2020, USCIS had 370,948 asylum applications, on behalf of 589,187 aliens, pending final adjudication.” “Over 94% of these pending applications are awaiting an interview by an asylum officer.” This means that as of July 31, the current affirmative asylum backlog was about 348,691 cases (meaning 348,691 cases were filed but not yet interviewed). Contrast this with the last time USCIS posted statistical information about asylum cases, which was for the period ending on September 30, 2019. At that time, the backlog stood at 339,836 cases. If all this data is correct (and I am never completely confident in the information we receive from USCIS these days), the backlog has grown by about 9,000 cases between October 1, 2019 and July 31, 2020.

If we believe these numbers, this means that the backlog grew faster in FY2019 than it did in FY2020. This may or may not be surprising, depending on your perspective. On the one hand, given that so few cases are being interviewed this year thanks to the pandemic, we might have expected the backlog to have grown more quickly. On the other hand, given that fewer asylum seekers are making it to the U.S., we might have expected the backlog to grow more slowly.

Finally, with regard to statistics, USCIS’s numbers indicate that 22,257 cases have been interviewed and are awaiting a decision. This seems like a lot to me, especially since Asylum Officers are interviewing fewer people because of the pandemic, and you’d think they’d have more time to finish cases that have already been interviewed.

Turning to the new rule itself, basically it means that when you go to an asylum interview, the government will provide you with a contract interpreter, who will attend the interview by phone. According to the new rule, “contract interpreters are carefully vetted and tested [and they] pass rigorous background checks as well as meet a high standard of competency.” In my experience, the contract interpreters are quite good, and I have never had a case where an interpreter caused a major problem. Prior to the new rule (and the coronavirus), applicants were required to bring their own interpreter, who assisted in person, while the contract interpreter monitored the interview by phone. Now, you are not allowed to bring your own interpreter, and you must use the telephonic interpreter.

Not all languages are covered by the new rule, but many are. USCIS contract interpreters are available for 47 languages. If your language is not on the list, you must bring your own interpreter.

If a contract interpreter is not available, the interview will be rescheduled and the delay will be attributed to USCIS for Employment Authorization Document (“EAD”) purposes (meaning that the Asylum Clock will not stop). On the flip side, if the applicant refuses to proceed with a USCIS contract interpreter, the Clock will stop, which will delay the EAD.

The new rule raises a few concerns. Probably the primary concern is whether asylum applicants will be comfortable with their interpreters. Will a woman who has been the victim of gender-based violence be comfortable if her interpreter is a man? I have heard anecdotally (and I believe it) that Asylum Officers are sensitive to this issue, and will check with the applicant before starting the interview. Also, if you prefer a male or female interpreter, you might ask in advance by emailing the Asylum Office before your interview. My sense is that the Asylum Office will do its best to accommodate such requests.

Another concern is that telephonic interpreters cannot as easily understand the applicant (or the Asylum Officer) and may not be able to convey emotion or nuance as well as they might if they were present in person. While I suspect that this is true, I think it is unlikely that missing such subtleties will make a difference in the outcome. Also, given the pandemic and the need for social distancing, it seems to me that we all need to make some adjustments.

All that said, how can you best work with a telephonic interpreter? Here are a few tips from a star interpreter, who has herself performed telephonic interpretations–

  • Keep your voice loud and clear. While this is important when working with on-site interpreters, it is even more important over the phone.
  • If you have a long statement, pause after a sentence or two so the interpreter can translate your words. After the interpreter is done, continue your response.
  • Don’t shuffle papers as you speak; you might as well stop talking because the interpreter will not be able to hear you.
  • Try not to talk over other people. The interpreter can only translate for one person at a time. Over the phone, it will be impossible for the interpreter to understand what is being said if people talk over each other. This could result in a statement by the applicant going unheard by the Asylum Officer–with potentially disastrous consequences.
  • Wait for the interpreter to finish interpreting before making another statement or asking a question.
  • If you don’t hear or can’t understand the interpreter, speak up!

All good advice to keep in mind at your interview.

Overall, my sense is that this new rule is reasonable and will hopefully allow more applicants to start attending interviews, while keeping everyone as safe as possible. 

Tip o’ the fedora to Professor Lindsay M. Harris, Director of the Immigration & Human Rights Clinic at the University of the District of Columbia, and interpreter extraordinaire Maria Raquel McFadden, for their contributions to this article.

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