The key to winning an asylum case in Immigration Court is preparation. I’d venture that the majority of asylum cases are won or lost before the applicant arrives in court for the final hearing. If the case and the applicant are well prepared, the chances for success are greatly improved. If the case and the applicant are not well prepared, the likelihood of winning is much reduced. So how do you prepare for an asylum hearing in Immigration Court?
First, you have to determine whether you are eligible for any relief. If you fear return to your country on account of your race, religion, nationality, political opinion or particular social group, you may be eligible for asylum or Withholding of Removal. If you fear torture, you could be eligible for relief under the United Nations Convention Against Torture. Besides these types of humanitarian protection, there are a number of other applications that might help you avoid deportation: Cancellation of Removal, adjustment of status based on a family relationship or a job, a T or U visa for certain victims of crimes, the semi-mythical S visa for certain cooperating witnesses, the Special Immigrant Juvenile visa, to name the most common. How do you know what relief you might be eligible for? Your best bet is to talk to a lawyer, but you can also do your own research.
Pear
Assuming you qualify for relief, you normally have to inform the Immigration Judge and submit all necessary forms at the Master Calendar Hearing (“MCH”). In many cases, if you do not submit all applications for relief in advance of the Individual Hearing, you forfeit those opportunities for relief. Be aware that some applications for relief require a fee (asylum does not require a fee), and so make sure to pay the fee well in advance of the Individual Hearing.
As the Individual Hearing approaches, you need to file all the necessary documents with the Immigration Court. This includes all evidence, a witness list, and a legal brief. The documents must be filed on time. The default rule (from the Immigration Court Practice Manual) is that evidence should be filed at least 15 days prior to the Individual Hearing, but some Judges have their own rules and require documents earlier than that (the Judge should inform you about this at the MCH). One copy of the evidence goes to the Court and one copy goes to the local Office of the Principal Legal Advisor (the prosecutor).
The evidence normally consists of the I-589 asylum form (and/or forms for any other applications for relief), an affidavit, and supporting documents. Any documents not in English must be properly translated. You can read more about what evidence is helpful here.
Courts also require a witness list, which is a list of people who will come to Court to provide testimony in your case. Anyone who plans to appear as a witness must provide a letter indicating what they know about your situation. There are benefits and risks to any witness, and you need to think carefully about whether a particular witness will be helpful for your case (and of course, if you have a lawyer, the lawyer should explore this with you). All witnesses need to be prepared for their testimony, just as the applicant herself needs to be prepared (see below).
Also, for most cases, it is a good idea to submit a brief detailing the legal theory of the case. This is especially important where the case involves a particular social group or PSG (the BIA requires applicants to specifically articulate any PSG). Even in cases where PSG is not an issue, it is important to explain the legal posture of the case and any issues that may be relevant (one year filing bar, nexus, persecutor bar, firm resettlement, criminal issues, etc.).
In addition, if your case was referred to Court by the Asylum Office, you should think about why. Are there inconsistencies or errors that need to be addressed? Maybe this requires a new affidavit or additional evidence. Did you fail to show that you suffered past persecution or that you have a well-founded fear of future persecution? Maybe you need more evidence or a stronger legal argument. While the Immigration Judge reviews the case de novo (meaning, the IJ makes her own decision), remember that the Asylum Officer’s notes can be admitted to impeach your credibility. As you prepare for Court, you should think about what was said and submitted at the Asylum Interview, and determine whether that requires any additional evidence or testimony.
Pre-Pear
Before the Individual Hearing, make sure you and any of your dependents have completed their biometrics (fingerprints) appointment. If your case has been referred from the Asylum Office, this will already have been done (assuming you showed up for your biometrics appointment prior to your asylum interview). If not, you can request a biometrics appointment. This is important, and if you forget to do it (which is easy), it could result in the case being delayed or denied.
As the Court date approaches, it is important to practice for the hearing. How do you want to present your case? What questions might be asked of you? What are the weak points in the case and how will you discuss those? It is very important to think about these issues in advance. Judges and Trial Attorneys are good at finding the weaknesses in a case and asking about them, and failure to prepare ahead of time may result in the case being denied. In our office, we do two practice sessions with the client – the first about a week before the trial and the second a day or two before (this practice session is an much for the attorney’s benefit as the client’s).
Finally, prior to the hearing, it is a good idea to talk to the DHS Attorney (normally, your lawyer does this). It is not always easy to reach these attorneys, and they often do not return calls. However, at the beginning of the hearing, it is common for the Judge to ask whether the parties have talked, and so it is helpful to at least have tried to communicate with the government lawyer. Assuming you can talk to the lawyer in advance, you can potentially narrow the issues and have a better sense of what to expect at the hearing.
So that’s about it for preparation. In a future post, I will discuss what happens at the Individual Hearing.
The Trump Administration has been doing everything it can to block asylum seekers from reaching our shores (everything, that is, except working with Congress to reform the law). Many of the Administration’s policies are legally questionable (to put it mildly), and have been challenged in federal court. Now, in an extraordinary move, a union that represents Asylum Officers has filed an amicus brief opposing a policy of President Trump (their boss).
The Administration policy at issue is officially known as the Migrant Protection Protocols or MPP. It is also called the “Remain in Mexico” plan, and it requires many asylum seekers entering the United States from Mexico illegally or without proper documentation to be returned to Mexico for the duration of their immigration proceeding. As a result of the MPP, over 12,000 people have been forced to wait in Mexico while their cases are adjudicated in the U.S.
Acting USCIS Director Ken Cuccinelli responds to the question, “How many asylum seekers will be interviewed this year under the MPP?”
The problems with the MPP are too numerous to list here. But for starters, Mexico is not a safe place for many asylum seekers, especially women, children, and sexual and ethnic minorities. Another problem is that asylum applicants stuck in Mexico have less access to legal assistance and less due process of law. Of course, all this is by design, as the MPP is clearly meant to deter people from seeking asylum by punishing those who have the temerity to ask us for help.
Apparently, the MPP was also too much for many Asylum Officers, who are charged with evaluating asylum claims made by people arriving at our Southern border. Through their union, Local 1924, a group of Officers filed an “amicus” or “friend of the court” brief supporting a lawsuit that seeks to block the MPP. Amicus briefs must include a “statement of interest,” explaining why the filing party has an interest in the matter. Here is what Local 1924 had to say:
Local 1924 has a special interest in this case because, as the collective bargaining unit of federal government employees who are at the forefront of interviewing and adjudicating the claims of individuals seeking asylum in the United States, Local 1924’s members have first-hand knowledge as to whether the MPP assures the United States’ compliance with international and domestic laws concerning due process for asylum seekers and the protection of refugees and whether the MPP is necessary to deal with the flow of migrants through our Nation’s Southern Border.
There are two main reasons that Local 1924 objects to the MPP:
In the course of waiting [in Mexico] for a determination of their asylum applications, many [asylum seekers] will face persecution because of their race, religion, nationality, political opinion, or membership in a particular social group. By forcing a vulnerable population to return to a hostile territory where they are likely to face persecution, the MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.
Moreover, the MPP is entirely unnecessary, as our immigration system has the foundation and agility necessary to deal with the flow of migrants through our Southern Border. The system has been tested time and again, and it is fully capable—with additional resources where appropriate–of efficiently processing asylum claims… The MPP, contrary to the Administration’s claim, does nothing to streamline the process, but instead increases the burdens on our immigration courts and makes the system more inefficient.
In short, the officers charged with enforcing the asylum law at the Southern border think that the MPP violates the law and endangers people who our country is obliged (under international and domestic law) to protect.
Predictably, the Acting Director of USCIS (which oversees the Asylum Division), Ken Cuccinelli, issued a statement “blasting” the amicus brief:
Union leadership continues to play games while the border crisis intensifies. Lives are being lost, detention facilities are unsustainably overcrowded, and illegal aliens with frivolous claims continue to overwhelm our system. The fact of the matter remains that our officers signed up to protect the truly vulnerable, our asylum system, and most importantly, our country. A cheap political stunt helps no one and certainly does not help to contain this crisis.
In his statement, Mr. Cuccinelli fails to address any of the substantive claims raised in the amicus brief (shocking, I know). Instead, he falls back on the old talking point that frivolous asylum claims are somehow to blame for the crisis at the border. Of course, there is little evidence to support this position, but as a climate-change denier, Mr. Cuccinelli is obviously not beholden to concepts such as evidence or common sense (or common decency).
In my experience, most Asylum Officers take their jobs very seriously. They recognize their duty to uphold the asylum law and to grant or deny protection where appropriate. They also recognize their duty to protect the United States. This sense of responsibility to country stands in sharp contrast to the arrogance of the Trump Administration and the USCIS Acting Director, who seem to think they can run roughshod over our nation’s laws and force government employees to do the same. For this reason, I think the amicus brief is significant: It stands as an expression of independence of Asylum Officers (or at least those in Local 1924) to make decisions in accordance with the law, even when their higher-ups demand that they do otherwise.
I hope Asylum Officers and Immigration Judges around the country will take note. I hope that they will read the amicus brief, particularly the recitation of our country’s proud (but imperfect) history of protecting people fleeing harm. And most of all, I hope Officers and Judges will continue to follow the law, even when the political leadership pushes them to ignore it. Following and enforcing the law is the ultimate “rebellion” against the current Administration’s lawlessness. Our asylum system, our country’s moral integrity, and the lives of asylum seekers all depend on it.
Moving to another country can be challenging and confusing. Navigating that new country’s legal system can be downright maddening. As an asylum attorney, I’ve observed my clients’ behavior in Immigration Court, the Asylum Office, and during USCIS interviews, and I’ve accumulated a list of do’s and don’ts (mostly don’ts) for interacting with immigration officials. So, in no particular order, here’s what to do and not do, when you appear for your hearing or interview–
Do turn off your cell phone (don’t put it on “silent” or “vibrate” – turn it off)
Do dress respectfully
Do not wear a hat (unless it is religious garb, like a hijab or kippah)
Do not engage in fake emotional outbursts, like crying or screaming uncontrollably – it is not culturally appropriate in American, and it will potentially make the decision-maker uncomfortable, embarrassed or angry (you can express your emotions – just don’t be fake)
Don’t wear perfume or cologne
Do do these do’s or you’ll be due for deep doo doo (times deux).
Don’t answer a question when you do not know the answer – Don’t guess!
Do take a bath beforehand
Don’t tell the decision-maker that she is good-looking, smart, professional, well-dressed, brilliant, funny, Christ-like or anything else that resembles kissing her ass – this will probably only aggravate and/or creep out the person you are trying to flatter
Do tell the truth
Don’t cry and beg for a good decision
Do turn off your cell phone (I mean it!)
Do use the bathroom before your interview or hearing, so you do not have to interrupt proceedings to run to the potty
Do not lose your temper with or be disrespectful to the Immigration Judge, DHS attorney, Asylum Officer, interpreter, clerk, security guard or anyone else involved in the process
Do not chew gum (or tobacco, toothpicks or anything else)
Don’t bring small children to the court or the interview unless they are required to be present
Do bring all your original documents with you (all passports, birth certificates, marriage certificates, divorce documents, school and work records, military records, medical documents, death certificates, police reports, ID cards, photos, witnesses letters, etc. – in short, if you submitted a copy of it, bring the original if you have it)
Do show up on time (or better yet, show up early)
Don’t answer questions that you do not understand (just say, “Sorry, I do not understand the question”)
Don’t take advice from friends or family members if they do not know what they are talking about
Do be friendly and make eye contact
Don’t avoid responsibility for bad things you did, such as criminal conduct or prior misrepresentations – if you take responsibility, express remorse, apologize, explain how you have changed, and show that you will not repeat the bad behavior, you are most likely to overcome the problem (of course, if you have a criminal or misrepresentation issue, you should talk to a lawyer for guidance)
Do get a good night sleep beforehand (even though this can be difficult)
Do listen carefully and respond to the question that is asked; not to the question that you wanted them to ask
Do not try to avoid the questions or change the subject
Don’t interrupt other people, especially Judges, Trial Attorneys, and Asylum Officers
Don’t get flustered – if you are losing your cool, take a breath, or ask for a moment to compose yourself
Don’t leave your cell phone on – shut it off! (did I already mention this?)
Do stand up when the Judge enters the courtroom
Do not repeat the entire oath after the Judge or Asylum Officer asks whether you swear or affirm to tell the truth – just say, “I do” or “yes”
Do speak slowly and clearly, and, if you are using an interpreter, break up long answers into shorter bits so the interpreter can accurately translate everything you say
Do not bring weapons or other prohibited items to the courtroom or Asylum Office
Do not roll your eyes or use other disrespectful body language
Do answer questions verbally – you cannot nod your head for “yes” or “no”
Do sit up straight
Do not plead “Not guilty!” at the Master Calendar Hearing
Do think before you speak – Why are you being asked this question? What might the questioner have in mind?
Don’t answer a question in court if your attorney objects to that question – let the Judge make a decision on the objection. Depending on how the Judge rules, you may not be required to answer the question
Do not forget where you are and get too comfortable/familiar – remember, you are being judged (literally)
Do not use curse words or rude language, unless it is part of the story you are telling
Do not refer to the Immigration Judge as “Your Lordship,” “Your Majesty,” “Your Highness,” “Oh Great One,” “Your Holiness,” “He Who Must Not Be Named,” or any other unusual sobriquet – in the U.S., we say “Your Honor”
Do not refer to the Asylum Officer by any weird sobriquets either – you can call the officer “Officer” or “Sir” or “Ma’am”
Do review your case before any hearing, and think in advance about how to respond to difficult questions
And most important of all, Do pay your lawyer (especially if you are my client!)
So that’s about it. This list is not comprehensive, of course, and so if you have any suggestions, please let us know. And in case I forgot to mention it: Turn off your cell phone!
Last month, the Asylum Division released the most recent data about the affirmative asylum backlog. The short story is that the nationwide backlog continues to grow, albeit quite slowly. Also, the growth is not evenly distributed among the various Asylum Offices–some are seeing their backlogs get larger; others are seeing their backlogs shrink. Here, we’ll take a closer look at what is happening in terms of the backlog, and also review some of the (surprising) answers that the Asylum Division gave to questions posed at the quarterly stakeholders meeting.
First, some numbers. In February 2019, the nationwide backlog was 326,767 cases; in March, it was 327,984, meaning that the backlog grew at a rate of less than 0.4%, which is pretty insignificant. However, when we break down the growth rate by Asylum Office, we see a different picture. Some offices had growing backlogs: Arlington (+1.5%), Boston (+0.2%), Houston (+1.8%), Miami (+0.8%), New York (+0.2%), New Orleans (+4.1%), and San Francisco (+0.5%). Other offices had shrinking backlogs: Chicago (-0.2%), Los Angeles (-1.3%), and Newark (-1.9%).
Typical reaction when an asylum seeker learns about the backlog.
What these numbers mean for asylum seekers is not entirely clear. For people in the backlog, only three offices seem to be making any headway at all, and so if your case is stuck in Chicago, LA or Newark, there is at least some hope that you will eventually receive an interview. Backlogged applicants in the other offices are unlikely to receive an interview any time soon, unless they can expedite their case.
For new applicants, my suspicion is that offices with shrinking backlogs are more likely to interview newly-filed cases. For example, most of our cases are filed in three offices: Arlington, Chicago, and Newark. Arlington has a growing backlog, and our experience there is that a minority of our newly filed (LIFO) cases receive interviews. In Chicago and Newark, which both have shrinking backlogs, our newly-filed cases all seem to receive interviews.
So if you plan to file for asylum, and want to maximize the chance for a fast interview, are you better off filing in Chicago, LA or Newark? Maybe. But one issue is that USCIS moves resources from office to office, and so a fast office today might be a slow office tomorrow. An example of this is Los Angeles. For years, LA was the office with the largest asylum backlog. Then, at some point, headquarters sent some help (or made some sort of change), and now LA is one of the “fast” offices. At the Asylum Division Quarterly Stakeholder meeting last month, we asked about the inequitable delays, and the leadership told us that in summer, they re-evaluate how resources are distributed. So maybe there will be changes in the coming months, and this could affect how the local offices process their cases.
What about grant rates at the different offices? There are different ways to calculate grant rates, and so to some degree, whether a particular asylum office is “easy” depends on how you crunch the numbers. I prefer to factor out “no shows” for obvious reasons. I also factor out one-year bar cases, which is arguably a bad idea, and cases referred without an interview. In other words, I want to know the grant rate for cases filed on time, where the person shows up for his interview. Using that method, the overall grant rate for the U.S. for March 2019 (the most recent month available) is 47.7% (had I not factored out the cases I don’t like, the grant rate would be much lower: 27.5%). Looking at grant rates for each office, we have: Arlington (44.0%), Boston (37.8%), Chicago (55.6%), Houston (44.7%), Los Angeles (68.3%), Miami (25.5%), Newark (43.1%), New York (23.7%), New Orleans (68.3%), and San Francisco (69.3%).
While I think there is some value to these numbers, it is important to remember that different offices serve different populations, and some populations are more likely to be denied than others. For example, though many Central American asylum seekers face severe danger, they often have a hard time winning asylum because the harm they typically face does not easily fit within a protected category under the asylum statute. For this reason, an office with many Central American cases might have a lower grant rate than an office that serves a different population. Put another way, a strong case is likely to win regardless of the office where you file. Even so, when you have such a wide range of approval rates, it’s hard to argue that a person is not better off filing in LA, San Francisco or New Orleans, as opposed to Miami or New York.
So that’s more-or-less where we are in terms of the backlog and asylum grant rates, but there is other news from the Asylum Division as well, including about the LIFO system itself. Here, the Asylum Division is claiming a win: “Since the adoption of the LIFO scheduling policy, the Asylum Division has seen an approximately 30% decrease in receipts [i.e., newly-filed asylum cases].” The theory being that frivolous asylum seekers, who just want a work permit, are deterred from filing by the LIFO system. I don’t doubt that the number of asylum seekers has dropped since January 2018, when LIFO went into effect, but I am not convinced that LIFO gets credit (or blame) for this. There could be many reasons for the down turn, including normal fluctuations in applications, the hostile environment for asylum seekers, greater difficulty in obtaining a U.S. visa, etc. However, given that the Asylum Division views LIFO as contributing to a reduction in applications, I would not expect a change in that policy any time soon.
Also at the Stakeholders meeting, the Asylum Division informed us that, between October 2018 and March 2019, “approximately 70 percent of asylum office final decisions were made within two weeks of the completed interview.” I’m a bit more skeptical about this claim. At least I do not see it for my clients, who usually wait months (at least) for a decision. Admittedly, most of my clients are not typical asylum seekers, who come from Latin America and China, and that may skew my perspective (many of my clients come from Muslim countries, which seem to require longer background checks).
One final point: There have been rumors that the Asylum Division is terminating asylum grants for people from Ethiopia due to improved country conditions. In response to a question on this point, the Asylum Division states–
The Asylum Division initiates termination review when we receive person specific evidence that an individual asylee may be subject to termination of asylum status for any of the applicable grounds under 8 C.F.R. § 208.24. We have not issued any policy memos/directives/other information regarding the termination of asylum status based on the individual no longer having a well-founded fear of persecution due to changed country conditions in the individual’s country of nationality or last habitual residence.
In other words, there is no blanket policy to terminate asylum for Ethiopians. Whether this means that Ethiopian asylees are safe, I am not sure, but at least there is no general policy to terminate asylum in such cases.
So that’s the latest from the Asylum Division. If the recent agreement with Mexico blocks applicants from coming here, we might see resources moving from the border to the backlog, which could cause things to speed up. Only time will tell, and if there is news at the next Quarterly Meeting, I will try to post it here.
Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).
Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?
Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.
I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.
Judge Denise Slavin
I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.
I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.
I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.
Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?
Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.
As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.
I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.
Asylumist: What about lawyers who are bad actors, and who violate the rules?
Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.
Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?
Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.
As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.
Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.
Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?
Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.
As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.
Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?
Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.
Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.
The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.
In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.
Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.
Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?
Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.
As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.
Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.
The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.
These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.
Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.
The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.
Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.
Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?
Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.
The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.
Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.
Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.
Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.
The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.
Asylumist: How would it help if Immigration Courts became Article I courts?
Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.
There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.
If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.
Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.
I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.
EOIR has released a new “Myths vs. Facts” brochure.
This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:
Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more. Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.
Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream. Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.
Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS. Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!
Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget. Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.
Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration. Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…
So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?
If you look at the most recent statistics from the Asylum Division, the likelihood of receiving asylum affirmatively is only about 27%, nation-wide. However, if you remove people from the mix who filed late, or who failed to appear for their interviews, the situation is better: Nearly half of such cases (49%) were approved.
That’s the nation-wide picture, but when we look at data for the various Asylum Offices, things become less clear. Different Asylum Offices have very different denial rates for one-year bar cases (asylum seekers are required to file for asylum within one year of arriving in the United States or to meet an exception to the one-year rule; otherwise, they are barred from receiving asylum). The table below shows the likelihood that a particular Asylum Office will deny (or more politely, “refer”) an application for failure to timely file (the chart excludes cases where the applicant failed to appear for an interview):
Asylum Office
Percentage of Cases Referred to Court for Failing to File Within One Year of Arrival
Arlington
34.2%
Boston
52.9%
Chicago
13.2%
Houston
13.8%
Los Angeles
16.8%
Miami
40.3%
Newark
33.9%
New York
53.6%
New Orleans
27.3%
San Francisco
20.6%
United States
30.6%
Why should the different offices be so different in terms of late-filing referrals? It seems to me that there are two possible explanations, broadly speaking: Either the Asylum Offices are responsible for the disparity, or the asylum seekers themselves are responsible.
Unless you have a time machine, it’s best to file asylum before the one-year deadline.
The first possibility is that certain Asylum Offices are more aggressive than others about enforcing the one-year bar. I know this is the case with Immigration Judges. I am thinking of two IJs in my local court (two of my favorite IJs, by the way). I have presented several one-year bar cases to these judges. One almost invariably denies the asylum application based on the late filing (though in my cases, he granted other, lesser relief); the other looks to the “spirit” of the rule, and as long as the applicant did not have a bad intention (for example, to commit fraud), he usually excuses the late filing. It’s easier to see how this could happen with individual judges, rather than as an office-wide policy, but I suppose this is one possible explanation for the variability between Asylum Offices. If this is the correct explanation, then it makes sense for late filers to choose more friendly offices, such as Chicago or Houston, to file their cases (meaning, such people would have to live in the jurisdiction of these offices).
The other possible explanation is that the different offices are receiving different types of cases. Maybe asylum seekers in New York are too busy or too ill-informed to file their cases on time, while those in Houston have more free time, or are just more conscientious. To me, this seems a bit far-fetched (though I guess New Yorkers are pretty busy). Or maybe it has to do with the different populations served by each office. Maybe–for example–Chinese applicants are more likely to file within one year of arrival, since the Chinese community is well-aware of the one-year rule. In contrast, perhaps Central American applicants tend to arrive in the U.S. without an initial intention to seek asylum, but then decide later that they cannot return home, and in this way, they run afoul of the one-year bar. If LA has more Chinese applicants and New York has more Central Americans, perhaps this could explain the disparity. If (and its a big if) this explanation is correct, then it really doesn’t matter where you apply for asylum, as the different Asylum Offices are not responsible for the uneven one-year denial rates.
A third, hybrid explanation is that some Asylum Offices are cherry-picking their cases, and interviewing more one-year bar cases than timely-filed cases. We know, for example, that the Asylum Offices sent letters to asylum applicants who filed after 10 years in the U.S. and offered them an option to skip the interview and go directly to Immigration Court. If some offices, and not others, are deliberately selecting late-filed cases to interview, that could explain the disparity.
Frankly, I do not have much confidence in any of these explanations. But the disparity does exist and the fact is, some Asylum Offices are significantly more likely than others to deny asylum based on the one-year bar. So what can you do with this data? Does it mean that if you are filing after the one-year deadline, you should avoid Boston and New York, and instead file in Chicago, Houston or LA?
Given that it is difficult to draw a firm conclusion from the data, and given the severe consequences of filing late, the simple answer is to avoid the problem altogether by filing your asylum application on time. For those who miss the one-year deadline, it is important to prepare an explanation (with evidence) about why you filed late (I wrote about that here). This advice applies regardless of which office has your case. But I suppose the question here is: If you are filing late, should you move to a jurisdiction with an “easier” Asylum Office? (And remember, if you want your case heard by a certain office, you have to live within the jurisdiction of that office–you can check which office will adjudicate your case here).
I hate giving advice about where a person should live, but looking at the available data, it is impossible to say that a late-filer is not better off in one of the “easier” offices, like Chicago, Houston, LA or San Francisco. Obviously, there are other factors to consider–most people have to live where they have family support or a job. Also, in some instances, the one-year bar is easily overcome (for people who are still in status, for example) and so there is no reason to worry about which office has your case. But for those with more difficult one-year bar issues, it may make sense to “forum shop” and move someplace with an Asylum Office that is less likely to deny a late-filed application.
Last week, I attended a meeting about InfoPass for the Asylum Offices. InfoPass is an online system that allows you to make an in-person appointment about your immigration case. It has been in use by USCIS for about 15 years, and now the Asylum Offices are debuting their own version of the scheduling tool. The system is operational in my local office (Arlington, Virginia), but it is not yet available nationwide. Here, I want to talk about why the Asylum Offices are implementing InfoPass and what it will do. I also want to offer some constructive criticism (or, as we say in Yiddish, I want to kvetch).
There seems to be a couple main reasons why the Asylum Offices are adopting InfoPass. First, they want to be better prepared when people show up for an inquiry. With the current walk-in system, the Asylum Office (“AO”) does not know who is coming in or why, and so they cannot prepare in advance for the meeting. InfoPass will give the AO a heads-up, which will (theoretically) allow them to pull the file, and possibly have an answer when the person arrives. Second, InfoPass will reduce the likelihood that the AO will lose documents (a problem at my local office) because they will have the file available when the new documents arrive. Third, the new system will help manage the flow of visitors to the office and reduce wait times. The overall goal is to provide better, more efficient service.
“Well, at least we can make the whole ‘sinking thing’ a bit less unpleasant.”
So what can you do with InfoPass? Once you reach the InfoPass appointment page (and remember, this link is only for the Arlington office), you will see that there are about a dozen different options, from changing your address to changing your lawyer, delivering documents, inquiring about an interview or a decision, asking about the asylum clock or missing receipts, and withdrawing the case. There is also an “other” option for nonconformists. Depending on the reason for the visit, appointment availabilities and the time allotted for your visit will vary. So if you are dropping off documents, you will receive a shorter time slot than if you are inquiring about a delayed decision. If all goes well, when you arrive at your appointment, you will be received by a person who has reviewed your file, and is ready to help you.
Before we turn to the constructive criticism/kvetching, it is important to acknowledge that the Asylum Office is trying to make things better, and they should be commended for that. For me, one take away from the meeting last week is that creating an Asylum Office InfoPass system is really hard. Not only are they building something new and integrating it with existing systems, which is technologically challenging, but they also have to account for the human factor–desperate people trying desperately to talk to a human being. It ain’t easy.
The AO’s efforts are laudable, but I have some concerns about the system as it is currently envisioned.
The first problem is that people who are seeking USCIS InfoPass appointments–as opposed to Asylum Office InfoPass appointments–are filling appointment slots at the AO. During the first day of testing, something like 40 appointments were filled up almost as soon as the system went live. All but one were taken by people who were not asylum seekers, and who were actually seeking appointments with USCIS. The problem is that “regular” InfoPass appointments are almost impossible to get, and so these non-asylum seekers migrated from the regular InfoPass webpage to the AO InfoPass webpage. It doesn’t help that links to both types of InfoPass appointments appear on the same USCIS webpage.
The obvious solution is to limit AO InfoPass appointments to asylum seekers. However, as I understand it, there are technical issues that make it difficult to implement such a system, and so the AO is stuck manually going over the appointment requests to determine whether they are actually for asylum seekers. This seems untenable, and I suspect some technological fix will eventually become necessary. Maybe an interim solution is to put a link to the AO InfoPass webpage on the Asylum Office website, as opposed to the USCIS website. At least that would reduce the likelihood that “regular” InfoPass people would sign up for an AO InfoPass.
Another problem–and this is more for lawyers than for asylum seekers–is that we now need an InfoPass appointment to file documents. While I understand why the AO is requiring this (so they can pull the file in advance and insert the new evidence), it will be a hardship for lawyers. Most cases require the submission of additional documents before the interview. The problem is, we only get about three weeks notice before an interview, and (at least in Arlington) all evidence must be submitted one week prior to the interview. Thus, once we get notice of the interview, we have precious little time to complete the case. Adding a further constraint–such as the need for an appointment to file documents–is going to be very challenging. We often don’t know when the evidence packet will be ready, and so it is difficult to know when to schedule an appointment. Also, it is easier for repeat players, like lawyers, to file documents when they are going to the AO for some other reason. If we have to make extra trips to file documents, we may need to pass the expense on to our clients. This will make it more difficult for asylum seekers to afford legal help.
I expect that most lawyers would rather file documents by mail than make an InfoPass appointment. The problem is that evidence filed this way is more likely to get lost, which could result in the interview being rescheduled.
A third problem is that appointment slots are limited, and I fear that many will be filled by asylum seekers who repeatedly appear at the AO to inquire about their cases. While I understand that people are anxious and want to talk to a human being, without some limitation on the frequency that asylum seekers can appear at the AO, others who need appointments may not be able to get them. One (partial) solution here might be to identify questions that are amenable to telephonic or email responses, and then to contact the person prior to the appointment. The AO is hoping to implement such a system, but probably not anytime soon.
To me, the basic issue is that we need knowable, enforceable rules about InfoPass and about the asylum system in general. I’ve written previously about how the AO could make its webpage more useful. If people were more well-informed, they would have less need for InfoPass.
Based on the meeting last week, I think the AO is aware of these (and other) issues. They are open about the fact that the new InfoPass system is a work in progress, and that it will evolve as they learn more about how it is being used and what people need. While I can’t say I am thrilled about the new document filing system, InfoPass for asylum seekers is otherwise a positive development. Hopefully, the AO will continue to upgrade their systems and respond to the needs of stakeholders. If so, I expect they will improve efficiency and help ease the pain for those who are waiting.
The vast majority of Immigration Judges, DHS attorneys, Asylum Officers, and USCIS officers are professional and respectful. But what if they are not? What do you do then?
First off, I think it is important to understand that the bad officials are a small minority. I’ve been to many interviews and court hearings, and I’ve only ever made one complaint (against a USCIS officer at a Green Card interview). In other words, at least in my experience, government officials in immigration-world are generally pretty good.
Now admittedly, I am a lawyer and I know my clients’ rights and what to expect from “the system.” Pro se (unrepresented) applicants may not receive the same level of respect. They are easier to abuse, and it is more likely that decision-makers will cut corners in cases where the applicant is unable to protect herself.
That said, I am also involved in the BIA Pro Bono Project, where I review a dozen or so unrepresented appeals cases each month. I see the transcript of the Immigration Court case, and I can read how the Immigration Judge and the DHS attorney treated the applicant. While it is fairly common to see Judges and DHS attorneys moving quickly through a pro se hearing, it is also common to see these same officials taking extra time to ensure they are properly adjudicating the case. Once in a while, I see a case where the Judge steamrolled the proceedings to reach a quick decision, but that is the exception. In most cases, even those that were adjudicated quickly, the outcome seems fair, given the available evidence and testimony (one big caveat – many of these pro se cases are not well developed and are lacking in evidence. This is because the cases we review are for individuals who are detained. If these people had access to a lawyer and could better prepare their cases, many—even most—would achieve a better outcome).
The government takes your complaints very seriously.
While outright hostility and rule breaking seem quite rare, adjudicators can sometimes be testy, intimidating or unfriendly. What to do if you have the bad luck of encountering a hostile or impolite decision-maker?
The first thing to do is to remain calm. The demeanor of the decision-maker is often unrelated to the outcome of the case, and we have seen examples where an unfriendly officer issues a positive decision. Remember too that this person is not someone you will likely ever encounter again in your life. All you want from him is a favorable decision. Even if your experience at the interview is unpleasant or frightening, that won’t matter much if the case is granted. If you can keep your cool, answer all the questions, remain polite, and not lose your composure, you increase the likelihood of a good result. Getting angry, or arguing with the decision-maker is unlikely to get you the decision you want.
Second, make your record. This means, if you have something that you think is important to say, you should try to say it. In other words, don’t let an aggressive officer or judge intimidate you into silence. Court hearings and some USCIS interviews are recorded. Asylum Officers are supposed to write down everything you say (and if they do not write down what you say, you can complain to a supervisor). Even if you are ultimately prevented from saying something, if you indicate that you had something else to say, that exchange might be reviewed on appeal (or by a supervisor) and could result in a new trial or interview.
In making your record, you can be explicit. You can say to the judge or officer, “I think you are treating me unfairly because you are not allowing me to talk about X.” Say this politely and calmly, and it might soften the decision-maker’s stance. Say it aggressively, and you will likely harden the decision-maker’s position. I remember one case where the DHS attorney seemed (to me at least) to be taking a very aggressive position towards my asylum-seeker client. Finally, I simply asked (politely) why DHS was so opposed to asylum in the case. The attorney explained his motivation, which helped me better understand the case, and ultimately, the client received asylum.
Third, especially if you are unrepresented, you should write down what happened after the interview or court hearing. When things go wrong, it is important to try to understand what happened, and the more information you have, the better. If you write down what happened immediately, the information is more likely to be accurate. This will be useful if you later want someone else, like a lawyer, to review the case. It is also important if you need to make a formal complaint against the decision-maker.
Finally, if you feel you were subject to unfair treatment, you can make a complaint. Different forums have different procedures for complaining. For example, if you are with an Asylum Officer, you can ask to speak with a supervisor. You do this during the interview itself by telling the Asylum Officer that you would like to speak to a supervisor. For an Immigration Court case, you would typically contact the judge’s supervisor (called the Assistant Chief Immigration Judge) after the court hearing, or–more typically–you would just file an appeal to the Board of Immigration Appeals.
Periodically, I receive decisions that I think are wrong or unfair, but my clients have never been subject to treatment by an Asylum Officer or Judge that warranted a complaint. I did make a complaint once about a USCIS officer. I spoke to the officer’s supervisor immediately after the interview, and then sent a written complaint directly to the supervisor. I do not know whether the officer herself was informed of the complaint (I never saw her again), but I do know that my client’s case was approved in short order.
Most Immigration Judges and Asylum Officers are professional and respectful, and so hopefully, you will never encounter an official who is treating you unfairly. But if you do, keep calm, remain respectful, and politely make the points you need to make. This is the best way to maximize your chances for a positive decision.
Last week, I wrote about my suggestions for a new Asylum Office website. In that post, I gave short shrift to a new development: For affirmative asylum applicants, it is now possible to check your asylum case online at the USCIS website. This development is actually pretty significant, and will be particularly helpful for those who set up an account with USCIS in order to receive automatic case updates.
Here’s how it works: If you filed affirmatively for asylum–meaning, you filed a case with the Asylum Office–you should have received a receipt with an Alien number (a nine-digit number usually starting with 0 or 2) and a receipt number (three letters followed by a 10-digit number; the first letter is “Z”). You can now enter the receipt number into the USCIS Check Case Status web page and obtain information about your case.
I’ve plugged in several of my clients’ receipt numbers to get an idea of how the system works. After you enter the receipt number, you will receive a message about your case. The messages I saw have between one and four paragraphs, depending on the stage of the case.
The USCIS computer team celebrates as their agency enters the 20th Century.
The first paragraph gives information about the status of the case. This is discussed more below.
The second and third paragraphs of the message discuss the “Asylum Clock” and eligibility for an employment authorization document or EAD. In short, once an asylum case is received, the “Clock” starts. After the Clock reaches 150 days, a person may apply for an EAD, but the Clock must reach 180 days in order for USCIS to actually issue the EAD. If a person delays her case (by skipping an appointment, for example), it could cause the Clock to stop. Buried in the middle of the second paragraph is the number of days that have elapsed on your Asylum Clock and a statement about whether your Clock is still running. This is quite helpful, as it is easy to know when to apply for your EAD (on or after day 150, assuming the Clock is still running). One quibble, if I may: It would be nice to see this information more prominently displayed, as it is kind-of hidden in an otherwise boilerplate paragraph.
The final paragraph contains information about what to do if you move (file form AR-11).
There are different messages generated, depending on the status of the case. After the case is filed and received, the message reads, “The next step in your application is an in-person interview. Once your interview is scheduled, you will receive an interview notice in the mail and this case status will change. If you have an attorney or accredited representative on file, this individual will also receive a copy of the interview notice in the mail.” Another quibble: This message appears even if the biometrics (fingerprint and photo) appointment letter has been mailed out. In other words, at least for the case I checked, the system does not indicate that a biometrics letter was sent. Hopefully, USCIS will include this information as it continues to update the online system.
Once the interview is scheduled, the message states, “Your interview has been scheduled. You will receive an interview notice at the mailing address we have on file. If you have listed family members as dependents on your application, you must bring them to your interview. If you cannot communicate effectively in English, you must bring an interpreter. If you have an attorney or accredited representative and come without that representative, we will ask you to sign a form stating you agree to be interviewed without that representative present.” Further down the page, the message indicates that you can reschedule the interview. However, there is no information about how to contact the Asylum Office to reschedule. Such information would be helpful, even if it is only a link to the (woefully inadequate) Asylum Office website (which also does not tell you how to reschedule an appointment). By the way, it seems that the interview message is the same whether it is a first interview or a rescheduled interview.
If the interview has taken place, but there is not yet a decision, the message states, “You completed your interview with USCIS. The time it takes for USCIS to give you a decision after completion of an interview may vary. An officer told you at the end of your interview if you needed to return to the office to pick-up your decision on a specific/scheduled date, or if your decision would be mailed to you.” This same message seems to appear regardless of how long the decision has been pending. For example, I checked one of my long-delayed cases (filed over five years ago!). I suspect that the case is being held up due to a TRIG (Terrorism Related Inadmissibility Grounds) bar–the client was kidnapped and paid money to the bad guys to get released (this is an example of how the TRIG bar treats the victims of terrorism as if they were terrorists). The client was interviewed (about four years ago), but there is still no decision. For this client, I received the same Case Status message as for a client who was interviewed three months ago (and who does not have any TRIG issues).
Once a decision has been made, the message reads, “We reached a decision in your case. You should expect to receive the decision in the mail shortly. You must follow the instructions in your decision letter as to what you should do next.” If the decision was picked up, the message reads, “We reached a decision in your application. You recently picked up this decision at our office. You must follow the instructions in your decision letter as to what you should do next.” Whether the case was granted, denied or referred to Immigration Court, the message was basically the same. In other words, you cannot determine the outcome of the case based on the online message.
I did not have any cases with a pending Notice of Intent to Deny, so I do not know if the online system indicates whether such a letter has been mailed out. I hope it does, as applicant’s only have 16 days to respond to a NOID, so the earlier they know about it, the better.
I also checked an application that was closed. The message states, “We closed your application and notified you of the reason in the decision letter we mailed to the address we have on file for you. You must contact the office that has been handling your application if you believe your application should not have been closed.” Such a message means that the case is no longer with the Asylum Office. In our client’s case, the person had previously been before an Immigration Judge, and the Asylum Office determined that it did not have jurisdiction.
Probably the best part about the new system is that you can set up an account with USCIS so that you receive automatic updates by email or text message. In this way, you will know when to expect your interview notice or decision. And here’s a bonus: If you sign up for Informed Delivery with the U.S. Post Office, you will get a scan of all mail coming to your house, so you will know exactly when your notifications (and all your other mail) are arriving. Informed Delivery is not available everywhere, but you can check the USPS website to see whether you are eligible.
Finally, one last issue: The USCIS website is only in English. There are a limited number of messages that appear when you check your receipt, and so it really shouldn’t be that burdensome to create messages in other languages (Spanish being the most obvious). I am not sure that this is under consideration, but it would be very helpful.
So that’s about it. The new system is a good start, especially if you get automatic updates, but it’s not a substitute for a more informative Asylum Office website, as I discussed last week. Hopefully, USCIS will continue to improve it’s online presence, and continue to improve the process for asylum seekers and everyone else in the system.
These days, I don’t like to criticize you. I know that you’re under a lot of pressure from the political higher-ups who hate the whole “asylum thing.” But let’s face it–your website stinks. Fortunately, help is at hand. I’ve taken the liberty of creating a new website, which will benefit not only beleaguered asylum seekers, but also the hardworking folks at the various Asylum Offices.
And yes, I know that the Asylum Division is in the process of redesigning its online presence. It is now possible to get some basic information about an asylum case–including how many days have elapsed on the Asylum Clock–by entering the receipt number into the USCIS website (the receipt number is listed on the asylum receipt and starts with the letter Z).
Also, it should soon be possible to obtain an Info Pass appointment at the local asylum offices. If this system works, it will be better than what we have now (show up and hope for the best). But I’m worried that the asylum Info Pass will be as problematic as the current USCIS Info Pass system–these days, it’s easier to score Hamilton tickets than to get a USCIS Info Pass appointment.
Rumor has it that the Asylum Division is powered by a C-64.
That’s the (more or less) good news. The bad news is that the Asylum Office Locator has been changed as well, and it’s less useful now than it was before. The page still contains the addresses and office hours of the local asylum offices, and where to mail an initial I-589 (which varies depending where in the U.S. you live). But other contact information–email addresses and phone numbers–that appeared in the previous iteration of the website is now absent.
I get it–the Asylum Offices want to save time by preventing people from calling or emailing (I want to do this too), but now the only way to communicate with them is to go in person (difficult, especially for people who live far from the office) or send a letter (yes, a letter, like snail mail). The old email addresses still work, and I imagine the phone numbers do to (I haven’t tried to call the Asylum Office main number in years, as they rarely answer), but if you don’t have that information already, you’re basically out of luck.
All these changes are a mixed bag, but more can be done. The main problem with the current situation is the lack of available information. This is bad for asylum seekers, who are left in the dark, but it’s also bad for the Asylum Office staff, who have to respond to repeated requests for general information (which perhaps explains why certain contact information was removed from the website). My theory is this: If the website answered more questions, asylum seekers would be more informed, less stressed out, and less likely to contact the Asylum Office for help. This is what we in the business call a win-win.
So I’ve designed a new website for you. It’s attached below as a PDF. There are two parts–the Main Asylum Office Webpage and the Local Asylum Office Webpage. I’ve written it in outline format because I thought that would be easier to understand. Also, for the life of me, I can’t figure out how to make a flow chart (sad, as I was once fluent in Fortran).
The main page is designed to tell asylum seekers how to file, and to explain the process. It also provides links to help people find information they need, and answers some common questions. The local page provides specific information about a person’s local asylum office, including instructions for filing evidence, and information about expediting and short listing a case. If this information is available in multiple languages, that would also be a plus.
To be sure, my design, while quite lovely, is pretty basic and needs some work, but the main point is this–The Asylum Division should have a website that better serves asylum seekers. So, my friends at the Asylum Division, I proudly present you with your new Asylum Division Website Outline! I assume it will be up and running shortly.
As you may have heard, parts of the federal government are closed for business. After two years of Republican inaction on “the wall,” somehow President Trump has decided that now is the time to shut the government down in an effort to “permanently fix the problem on the Southern Border.” Let’s look at the effect of the shutdown on immigration generally, and on asylum more particularly.
In immigration world, the biggest–and most ironic–effect of the shutdown has been to close most of the nation’s Immigration Courts. Courts that handle detained cases are still operating normally, but non-detained courts are closed. The irony is that shuttering the courts will have the effect of delaying the deportation of many aliens. On average (and based on current projections for FY2019), Immigration Judges will deport about 676 people per day. If we remove detained cases from the mix (very roughly speaking, detained cases make up about 13% of all Immigration Court cases), we can estimate that for each day the government is shut down, 588 people are spared from deportation. Given the long backlog in Immigration Court, most people with postponed cases will probably not return to court for another year or two, and so such people will be able to remain the U.S. far longer thanks to the shutdown.
$5,700,000,000 wall vs. $79 ladder.
Also from the Irony Department: The lapse in government funding means that Border Patrol agents–the very people who are supposed to guard our Southern border–will not be paid until the shutdown ends. As you can imagine, this is not great for morale. In addition, the E-Verify System, which allows employers to check whether a particular person is authorized to work, is down. If this “electronic wall” is not working, some “illegals” may be able to work. These results seems contrary to Mr. Trump’s stated goals of deporting more people and fixing the broken immigration system, but what else is new?
Of course, many asylum seekers will not be very happy about having their court cases delayed. Some have been waiting years for a decision, all the while separated from family members and living with great uncertainty. For such people and their families, the delay is heartbreaking.
To check on the status of the Immigration Courts, you can visit the EOIR website, which will indicate whether operations have resumed. If your court case is postponed due to the shutdown, the case will be rescheduled once the lapse in funding has been resolved. From EOIR:
Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.
In other words, the Immigration Court will send you or your lawyer a written notice for the new hearing date. You can also check the Immigration Court hotline, which indicates when your next hearing is scheduled. The phone number is 800-898-7180. This is a computer system; not a person. When it answers, follow the instructions and, when prompted, enter your Alien number. The system will tell you your next hearing date. Unfortunately, the hotline will not be updated during the shutdown, but once the situation is resolved, you can check for your next appointment (whether cancelled Individual Hearing dates will be set for another Individual Hearing or a Master Calendar Hearing, we do not yet know).
What if you want to file documents, evidence or a change of address with the Immigration Court? Immigration Courts and the Board of Immigration Appeals (“BIA”) are accepting filings for detained cases. As I understand, most courts are also accepting filings for non-detained cases, but such filings will not be acted upon. The problem is that such filings may get lost in the avalanche of documents that the courts receive. This problem will be especially acute if the shutdown drags on for weeks or months. My advice: If you have a deadline, file your documents, but make sure to keep a copy for yourself and have evidence that you filed (if you can file in-person, the clerk will stamp your copy of the documents; if you file by mail, you should keep a copy of the certified mailing receipt). If you do not have a deadline or an emergency, it is probably better to wait until the shutdown ends before filing any documents with an Immigration Court or the BIA.
For asylum seekers and immigrants who do not have court cases, the shutdown is far less consequential. USCIS obtains its budget from “customer fees” (i.e., money you pay for your green card, work permit, etc.), and so the lapse in government funding is not an issue (there is currently no fee for asylum, but USCIS customer fees fund the Asylum Offices). As a result, the Asylum Offices, USCIS offices, and Application Support Centers (the place that takes your fingerprints) are all operating normally. While this is unlikely to change, there is no harm in double checking before you make the trek to your appointment. You can do that here.
One final question is, How long will the shutdown last? Of course, we do not know. The longest shutdown to date occurred during President Clinton’s term, and lasted 21 days. The current shutdown began on December 22, 2018, and so as of this writing, we are approaching Mr. Clinton’s (or more accurately, Newt Gingrich’s) record. The shutdown is inflicting much damage on our country, including to some immigrants and asylum seekers. Let’s hope that our leaders can bring an end to the impasse as soon as possible.
According to recent reports, the Trump Administration is considering charging $50.00 to apply for asylum in the United States. If the purpose of this fee is to dissuade people from seeking asylum, it is a stupid and cruel idea, which may violate our treaty obligations. If the purpose is to raise money to help cover the costs of the asylum process, it is merely a stupid idea.
Here is what we know so far. The Trump Administration is working on a new regulation that would require applicants who are already residing in the United States to pay $50.00 to apply for asylum. “The fee would not apply to those who claim a fear of persecution at ports of entry or those who apply for the protections while in deportation proceedings.” “There would be no waiver of the fee for those who cannot afford to pay the $50.” Currently, of course, there is no fee to file for asylum.
Why is this idea so dumb?
If the fee is meant to deter people from filing for asylum, few will be dissuaded by such a low amount. The only applicants who would potentially be blocked by this fee are those who are particularly vulnerable, such as children. In most such cases, non-profit organizations would probably cover the costs, but this will be burdensome for the non-profits, many of which are already suffering from insufficient resources. So in practical terms, this fee would block few people from asylum, but it would create a further strain on organizations that assist asylum seekers.
Wait in line for asylum with the hoi polloi? Never!
To the extent that anyone is blocked from asylum by this new policy, the fee might violate our treaty obligations (not to mention our moral responsibility to people fleeing harm). For example, Article 25 of the Refugee Convention contemplates “exceptional treatment” for indigent asylum seekers, and so people blocked by the fee would have grounds for a suit against the federal government.
Also, the idea of charging a nominal fee to people fleeing harm is just plain cruel. Many asylum seekers have suffered past harm, and they are already fearful and traumatized. The legal changes and malicious rhetoric of the Trump Administration have already increased the stress level for these vulnerable people. A filing fee would be one more indicator of how unwelcome asylum applicants are.
In addition, asylum seekers often must wait for many months before they can obtain permission to work in the United States. Talk to most asylum seekers, and you will hear stories of great financial difficulty. Many have lost property and assets at home, and are living off their savings or the goodwill of family and friends. A filing fee under these circumstances is one more strain on people who are often in dire financial straits.
Finally, asylum seekers already pay plenty of fees. Although they do not pay directly for the asylum form, they often employ lawyers and experts, or have to pay for mailing and copying fees for their evidence, and for transportation to their interview. In addition, for people granted asylum, there is the fee for the green card (currently $1,225.00) and for U.S. citizenship ($725.00). Obtaining status in the United States is not cheap, and given that they have to pay for other steps in the process, asylum seekers are pulling their weight.
If the purpose of the fee is to offset the government’s costs, perhaps there is a better way. First of all, the $50.00 fee will do little to help the government. Given that the fee will only apply to certain affirmative asylum applicants, the amount of money generated will not be significant. Based on the current number of cases filed, a $50.00 fee would add less than $5 million to the government’s coffers per year. I have not been able to find recent data on USCIS’s budget, which is almost entirely funded by user fees, but in 2008, that budget was $2.6 billion. Presumably, it is more today. Even using the 2008 figure, $5 million represents less than 0.2% of the total.
If the government wants to make a profit from asylum seekers, maybe an alternative solution is to allow “premium processing” for asylum cases. Certain types of applications allow the alien to pay an additional fee (currently $1,410.00) to have their case processed more quickly. Some asylum seekers would probably be able to afford such a fee (remember, asylum seekers have made their own way to the U.S., usually by paying for transportation and sometimes by paying a smuggler). So perhaps there is room here to make a deal (I know how much President Trump loves a good deal).
I’ve previously spoken about this idea to the muckety-mucks at the Asylum Division (and I’ve written about it here as well). I think the main objection was optics–it looks bad to charge asylum seekers a fee, and it looks bad to allow asylum seekers with money to jump ahead of those without. I get that. But now we are in a new world. The government seems to be moving forward with fees for asylum seekers. If so, at least one of these objections is off the table.
As for the fairness argument (people with money should not be processed before people without money), in my opinion, that fails as well. Name one thing about asylum that is fair? The idea of fairness just doesn’t apply to asylum, so why apply it to premium processing? Earlier this year, we switched from FIFO to LIFO, so people who apply today are often interviewed before people who have been waiting for years. Is that fair? Asylum seekers with money hire fancy lawyers to help with their cases. This isn’t fair either. So for me, at least, the fairness argument falls flat.
This is especially so given that allowing “rich” asylum applicants to pay a fee would benefit everyone in the system. People who could pay the fee would benefit the most, and their cases would move the fastest. But the infusion of money into the system and the removal of “premium” cases from the queue would benefit everyone. Even those who do not pay should see their cases processed faster than they are moving today.
So instead of charging all applicants, including indigent applicants, $50.00 to file for asylum, let’s allow those who can afford it to pay for premium processing ($1,410.00 or some other fee that makes sense). This will offset costs for the government and benefit all asylum seekers.
The indefatigable folks at TRAC Immigration have issued a new report about our nation’s Immigration Courts, and the news is not encouraging: Overall asylum denial rates are the highest we’ve seen in almost two decades. As always with asylum numbers, things are not quite so simple, so let’s take a look at what’s going on.
Fiscal Year 2018 (which ended on September 30, 2018) was noteworthy for several reasons. First, the asylum denial rate reached 65%. This caps a six year trend of increasing denial rates and represents the highest rate of denial in 20 years (between 1986 and 1999, denial rates ranged from 68% to 89%). In some ways, the news from FY2018 is worse than the average denial rate indicates. If you look at TRAC’s month-to-month chart, you can see that denial rates spiked between June 2018 and the end of the fiscal year. Thus, in the last few months of the fiscal year, denial rates were pushing 70%.
Rejection rates also went up after each Immigration Judge received a fancy new “Denied” stamp.
A second way that FY2018 stands out is that Immigration Courts adjudicated more asylum cases than any prior year: 42,224. This figure represents significantly more decisions than FY2017 (30,253) or FY2016 (22,318). Indeed, this is the most asylum cases decided in any one year since at least 1986 (I could not find data older than that).
Despite the higher denial rates, there is a silver lining to the news from FY2018: In absolute terms, more asylum cases were granted in that year (14,200) than in any previous year (in FY2017, courts granted 11,591 cases, and in FY2016, they granted 9,714 cases). Of course, the only reason so many cases were granted is because courts are adjudicating record numbers of cases overall. But these days, we takes our good news where we gets it.
These figures raise an obvious question: Why are denial rates so high?
One factor that is (probably) not to blame is the availability of help from lawyers. For the first time since FY2013, representation rates are going up. When people are represented, they are statistically more likely to win their cases. For example, in FY2016, asylum seekers without lawyers were denied 90% of the time; those with lawyers were denied only 48% of the time. While I think this disparity exaggerates the benefit of lawyers (because people with weak cases are often less likely to have representation), it is still pretty clear that having an attorney increases the likelihood of a successful outcome. Given that more people are represented these days, the increased asylum denial rate is likely not caused by an absence of legal council.
A second reason that I suspect is not to blame are the new Immigration Judges hired since the Trump Administration came into office. Since January 2017, the Executive Office for Immigration Review has significantly expanded the number of IJs nationwide. Most likely, this accounts for the increased number of decisions, but we don’t yet have data on the “Trump” judges’ denial rates. My guess is that the statistics for these new IJs will not differ very much from their more senior colleagues. I could be wrong here, but at least in my experience, the new judges do not seem any tougher than the judges that we have been dealing with for years. Perhaps as they gather more data, TRAC will issue a report about this (and maybe I will be proved wrong – I will be curious to know the answer).
One likely candidate for the increased denial rate is the case Matter of A-B-, 27 I&N Dec. 316 (AG 2018), which was issued by then-Attorney General Jeff Sessions this past June. The decision made asylum more difficult for people fearing harm from non-state actors, in general, and for victims of domestic violence, in particular. After Matter of A-B- was issued, there was a corresponding uptick in asylum denial rates. Even before Matter of A-B-, however, asylum denial rates had increased since the end of the Obama Administration (and indeed, they have been increasing since 2012). This increase might reflect less significant developments in immigration case law, as well as the cultural shift that I imagine accompanies any new Administration (and especially an Administration so openly hostile to non-Americans).
When considering asylum denial rates, one important point about A-B- is that the case is limited in scope. Certain aliens–especially people fleeing domestic and gang violence in Central America and Mexico–will be disproportionately affected, but others will not be affected. Given that a large percentage of asylum cases involve Central Americans and Mexicans, a case like A-B- has a visible impact on overall denial rates, even though the impact of the decision is limited to certain types of cases. This means that while changes in the law have affected the denial rate, that effect is an “average,” and how a particular case is impacted depends on the facts of that case.
Another contributing factor to the higher denial rate may be that more long-term residents are coming into Immigration Court. This happens because the government is aggressively pursuing aliens without lawful status. It also happens because the Asylum Offices are identifying people who have been in the U.S. for more than 10 years, and trying to refer them to court.
Aliens who have been present in the United States for more than one year are often ineligible for asylum due to the one-year filing bar. There are exceptions to this rule, but it is generally more difficult for such people to win their asylum cases. Many people in this position file asylum as a last-ditch effort to remain in the United States. My guess is that as these long-term residents start to receive decisions, many will be denied, and this will contribute to the overall increased denial rate.
We’ll have to see whether the current trend continues. These days, government officials are looking for ways to make asylum more difficult, but they are limited by the law, and so it’s not clear how much higher the denial rate can go. When thinking about denial rates, it is important to remember that certain cases–Matter of A-B- cases, one-year bar cases–are probably driving the increase in denial rates. Other cases are less affected. Either way, the environment these days is not easy for any asylum seeker, and so it is more important than ever to gather evidence and present the strongest case possible.
A recent article in the Washington Post discusses the case of Santos Chirino, a Honduran man who sought asylum in the United States after gang members threatened him for testifying against one of their own. Immigration Judge Thomas Snow found that Mr. Chirino did not qualify for asylum or other relief, and ordered him deported. Eight months after he returned home, Mr. Chirino was shot dead at a soccer match.
Mr. Chirino’s is a sad and sympathetic case. But the fact is, his story tells us nothing about whether Judge Snow made the wrong decision. In fact, our asylum system is designed so that a certain percentage of those properly ordered deported will be harmed or killed in their home countries. Let me explain.
To win asylum, an applicant must demonstrate that he faces at least a 10% chance of “persecution” (serious harm or death) in the home country (this statement is a simplification, but for our purposes, it works just fine). Mathematically speaking, applicants who demonstrate a 9% chance of harm should be deported. If 100 such individuals are deported, we would expect nine of them to be persecuted upon their return.
Predicting is difficult; especially when it’s about the future.
As a conservative and cautious person, I do not like these odds. If you tell me that my airplane has a 9% of crashing, there’s no way in hell I’m getting on board. I’ll take the bus, thank you very much.
The situation is even more grim for people–such as Mr. Chirino–who do not qualify for asylum, but who still fear harm. Some people are ineligible for asylum because they committed crimes; others, like Mr. Chirino, are barred because they failed to file within one year of arriving in the U.S. and failed to meet an exception to that rule; still others are blocked because the harm they face is not “on account of” a protected ground (race, religion, nationality, particular social group or political opinion). Such people can apply for other, lesser, forms of relief: Withholding of Removal and relief under the United Nations Convention Against Torture (“CAT”). But to qualify for protection under these laws, an applicant must demonstrate that she will “more likely than not” suffer persecution or torture in the home country. In other words, that the likelihood of harm is greater than 50%.
This means that under our system, applicants for Withholding or CAT who demonstrate a 49% chance of being persecuted or tortured should properly be deported. Again, if 100 such people are deported, we can expect 49 of them to be harmed. This is not very comforting for asylum applicants or their families, or for people like Judge Snow who work in the system and are tasked with enforcing the law.
There’s another side to this coin, however. That’s the case where the adjudicator grants relief, and then the person commits a bad act inside the United States. Fortunately, such cases are rare, and it has been pretty-well demonstrated that immigration to the United States has a neutral or positive effect on crime rates (this makes sense given the strict vetting process for immigrants). But there are glaring exceptions, and these tend to get significant attention. One recent case involved a Salvadoran teen accused by DHS of membership in MS-13. Last summer, an Immigration Judge found the evidence against him insufficient and ordered him released from custody. A month later, he helped commit a brutal murder. Once again, the Immigration Judge may have made the “right” decision, but the end result was tragic.
So in a sense, Immigration Judges are caught between the Charybdis of granting relief and the Scylla of denying. But to me, that is not really their problem. We live in an imperfect world, and we have an imperfect asylum system. Judges operate within that system and hopefully follow the law to the best of their ability. If a particular asylum seeker has demonstrated a 9% chance of harm, the judge should deport that person. That is the law, and if we don’t like the law, we should try to change it.
In Mr. Chirino’s case, the tragedy is compounded by the fact that his denial was likely a result of failing to meet the nonsensical one-year filing deadline. Had he filed on time, or met an exception to the one-year bar, his case would have been evaluated under an easier standard, and he might have been granted relief. Again, this is a problem with the law, not the judge, and it is up to us to change laws that we do not like.
Several years ago, I was speaking with Judge Snow, who I consider one of the best and most thoughtful judges I know. I was thinking about applying to be an Immigration Judge, and I asked him how he handles hard cases, those where his sympathies lie with the applicant, but where relief was legally unavailable. He told me that in such cases, he does his best to follow the law, even when it is difficult. That is a judge’s duty, and I have little doubt that that is what Judge Snow did in the case of Santos Chirino.
I suppose all this goes to show that what works for “the system” does not necessarily work for the individual. One could argue that Mr. Chirino was an innocent martyr of our asylum system. He and many others have died or been persecuted so that our humanitarian immigration system might exist. It is important for all of us to be aware of these sacrifices, and to work towards a more perfect and just system.
