In order to “amplify” the President’s tough-on-immigrants campaign message and win votes, the Trump Administration is planning on conducting a series of ICE raids in “sanctuary” jurisdictions, such as California, Denver, and Philadelphia. What should you do if ICE (Immigration and Customs Enforcement) comes looking for you? Or if you get caught up in a raid?
Before we answer those questions, I want to note that people who have pending asylum cases, or who have cases in Immigration Court, are rarely targeted for arrest by ICE. The agency’s main targets are people who already have removal orders and people who have criminal issues (including very minor criminal issues). However, ICE also makes “collateral” arrests if they encounter other “illegals” in the course of pursuing their target. But unless you have already been ordered removed or you have criminal issues, it is unlikely that you will ever have to deal with ICE. That said, it never hurts to take precautions and to be prepared. So how do you do that?
In the old days, politicians would win votes by kissing babies.
First, a couple general rules to keep in mind. If you are stopped by ICE or the police, do not run away or resist. Keep your hands where the officers can see them. Be aware that in some states, you are required to give your name to law enforcement. Do not lie about your immigration status or present false documents. Trying to lie your way out of a situation rarely works, and is more likely to cause additional problems. The better approach is to inform the officers that you wish to remain silent and that you wish to contact a lawyer and/or your family. As you probably know, in the U.S., you have the right to remain silent, and anything you say to ICE or the police can be used against you in court. So the less you say, the better.
If the officers want to search you, you have a right to say no. However, if the officers have probable cause (for example, they suspect that you committed a crime and are carrying a weapon), they can search you. If ICE or the police want to search you, you can repeat that you do not consent to the search, but do not resist.
Non-citizen in the U.S. are required to carry proof of immigration status at all times (Green Card, work permit, asylum receipt, passport and visa, etc.). If an ICE officer asks for your immigration papers, you are required to produce your documents. If you do not have your papers with you, you can inform the officer that you wish to remain silent or that you wish to call an attorney. You also have a right to call your country’s consulate in the U.S. (though for asylum seekers who fear harm from the home government, this may not be a great idea). You might also scan your immigration papers or take pictures of them, and keep them on your phone or in your email. That way, even if you do not have the originals, you can at least produce copies. In addition, non-citizens in the U.S. illegally (and who do not have an application pending) can be subject to expedited removal if they have been in the U.S. for less than two years. So make sure to carry proof (or have it on your phone or in your email) that you have been in the country for more than two years. If you have been in the U.S. for less than two years, do not admit that. Stay silent and ask to speak to a lawyer.
One common way people get detained is during a traffic stop. If you are stopped for a traffic violation, the police officer can require you to produce your driver’s license, proof of insurance, and vehicle registration. Once the police have your information, they often check for outstanding arrest warrants. In some jurisdictions, they also check for immigration warrants and can detain people with outstanding criminal or immigration issues.
Today, politicians win votes by putting babies in jail.
It is less common for ICE to come to your home, but if that happens, you do not have to let them into your house unless they have a warrant signed by a judge. You can ask to see the officers’ ID and any warrant. Also, be aware that sometimes ICE officers will try to trick you into leaving your house or allowing them to enter. If ICE officers or the police force their way into your house, do not resist. Tell them that you do not consent to them entering your home, and that you wish to remain silent and contact a lawyer.
While it is probably unlikely that you will ever be detained by ICE, it is a good idea to have a plan in place just in case. What will you do about your children or other people that you take care of? Who will assist them? If you take medicine, make sure that someone can get it for you (including a copy of the prescription). What about bank accounts, vehicles, and property? You need to have someone to take care of your affairs in the event that you are detained, and that person needs to know what to do in case of an emergency.
In addition, keep your immigration and other legal papers somewhere where your family or friends can access them. Also, make sure your family members know or can find your Alien number. If you have a lawyer, your family members should have that lawyer’s contact information.
You can find more information (in many different languages) about encounters with ICE and the police at the ACLU “Know Your Rights” webpage.
Finally, if you are detained, you may be eligible for release on your own recognizance (meaning you are released and required to report back to ICE or an Immigration Court at some point in the future) or on a bond (meaning you pay money as a “guarantee” that you will appear for any future court date or for removal from the country). If ICE refuses to release you or set a bond, you can ask an Immigration Judge to do that. Depending on the circumstances, judges sometimes do not have the authority to release you. But in my experience, asylum seekers are almost always released unless they have criminal issues.
In short, while it is not impossible that a person with a pending asylum case will be detained by ICE, it is rare. Nevertheless, it’s a wise idea to have a plan in place and to be aware of your rights. That way, you will be ready for any eventuality.
Last week, USCIS announced a new rule for interpreters at Asylum Office interviews. Starting immediately, most asylum applicants should not bring their own interpreter to the interview, as had been the practice up until now. Instead, USCIS will provide an interpreter by telephone for most languages. The reason for the change is, of course, the coronavirus pandemic. This new rule will be in effect until at least March 22, 2021.
There are a few interesting tidbits contained in the rule’s preface, and here, I want to discuss those, as well as the effect of the new rule, plus some tips on working with telephonic interpreters.
One tidbit is statistical. To justify the new rule, USCIS cites some numbers indicating how serious the pandemic is. As of July 31, 2020, “there were approximately 17,106,007 cases of COVID-19 globally, resulting in approximately 668,910 deaths; approximately 4,405,932 cases have been identified in the United States, with new cases being reported daily, and approximately 150,283 reported deaths due to the disease.” This grim assessment by the U.S. government itself seems largely at odds with the picture painted by President Trump, who has pretty consistently underplayed the severity of the pandemic (at least in public, if not to Bob Woodward).
When using a telephonic interpreter, be sure to speak loudly into the phone.
Another interesting tidbit relates to the affirmative asylum backlog. Since the advent of the Trump Administration, the Asylum Office has become more tight lipped about its data, and so we receive fewer updates about the backlog (or anything else). But according to the new rule, as of “July 31, 2020, USCIS had 370,948 asylum applications, on behalf of 589,187 aliens, pending final adjudication.” “Over 94% of these pending applications are awaiting an interview by an asylum officer.” This means that as of July 31, the current affirmative asylum backlog was about 348,691 cases (meaning 348,691 cases were filed but not yet interviewed). Contrast this with the last time USCIS posted statistical information about asylum cases, which was for the period ending on September 30, 2019. At that time, the backlog stood at 339,836 cases. If all this data is correct (and I am never completely confident in the information we receive from USCIS these days), the backlog has grown by about 9,000 cases between October 1, 2019 and July 31, 2020.
If we believe these numbers, this means that the backlog grew faster in FY2019 than it did in FY2020. This may or may not be surprising, depending on your perspective. On the one hand, given that so few cases are being interviewed this year thanks to the pandemic, we might have expected the backlog to have grown more quickly. On the other hand, given that fewer asylum seekers are making it to the U.S., we might have expected the backlog to grow more slowly.
Finally, with regard to statistics, USCIS’s numbers indicate that 22,257 cases have been interviewed and are awaiting a decision. This seems like a lot to me, especially since Asylum Officers are interviewing fewer people because of the pandemic, and you’d think they’d have more time to finish cases that have already been interviewed.
Turning to the new rule itself, basically it means that when you go to an asylum interview, the government will provide you with a contract interpreter, who will attend the interview by phone. According to the new rule, “contract interpreters are carefully vetted and tested [and they] pass rigorous background checks as well as meet a high standard of competency.” In my experience, the contract interpreters are quite good, and I have never had a case where an interpreter caused a major problem. Prior to the new rule (and the coronavirus), applicants were required to bring their own interpreter, who assisted in person, while the contract interpreter monitored the interview by phone. Now, you are not allowed to bring your own interpreter, and you must use the telephonic interpreter.
Not all languages are covered by the new rule, but many are. USCIS contract interpreters are available for 47 languages. If your language is not on the list, you must bring your own interpreter.
If a contract interpreter is not available, the interview will be rescheduled and the delay will be attributed to USCIS for Employment Authorization Document (“EAD”) purposes (meaning that the Asylum Clock will not stop). On the flip side, if the applicant refuses to proceed with a USCIS contract interpreter, the Clock will stop, which will delay the EAD.
The new rule raises a few concerns. Probably the primary concern is whether asylum applicants will be comfortable with their interpreters. Will a woman who has been the victim of gender-based violence be comfortable if her interpreter is a man? I have heard anecdotally (and I believe it) that Asylum Officers are sensitive to this issue, and will check with the applicant before starting the interview. Also, if you prefer a male or female interpreter, you might ask in advance by emailing the Asylum Office before your interview. My sense is that the Asylum Office will do its best to accommodate such requests.
Another concern is that telephonic interpreters cannot as easily understand the applicant (or the Asylum Officer) and may not be able to convey emotion or nuance as well as they might if they were present in person. While I suspect that this is true, I think it is unlikely that missing such subtleties will make a difference in the outcome. Also, given the pandemic and the need for social distancing, it seems to me that we all need to make some adjustments.
All that said, how can you best work with a telephonic interpreter? Here are a few tips from a star interpreter, who has herself performed telephonic interpretations–
Keep your voice loud and clear. While this is important when working with on-site interpreters, it is even more important over the phone.
If you have a long statement, pause after a sentence or two so the interpreter can translate your words. After the interpreter is done, continue your response.
Don’t shuffle papers as you speak; you might as well stop talking because the interpreter will not be able to hear you.
Try not to talk over other people. The interpreter can only translate for one person at a time. Over the phone, it will be impossible for the interpreter to understand what is being said if people talk over each other. This could result in a statement by the applicant going unheard by the Asylum Officer–with potentially disastrous consequences.
Wait for the interpreter to finish interpreting before making another statement or asking a question.
If you don’t hear or can’t understand the interpreter, speak up!
All good advice to keep in mind at your interview.
Overall, my sense is that this new rule is reasonable and will hopefully allow more applicants to start attending interviews, while keeping everyone as safe as possible.
Tip o’ the fedora to Professor Lindsay M. Harris, Director of the Immigration & Human Rights Clinic at the University of the District of Columbia, and interpreter extraordinaire Maria Raquel McFadden, for their contributions to this article.
These days, it takes approximately forever to complete an asylum case. Because of the long wait, the law allows asylum seekers to apply for an Employment Authorization Document (“EAD”), which lets them work lawfully while the case is pending. In one of its many regulatory attacks on the asylum system, the Trump Administration recently implemented new rules making it more difficult to get an EAD. But those rules have been challenged in court. Let’s take a look at the law, the old rules, the new rules, where things stand now, and–most importantly–how asylum seekers might still qualify for an EAD.
As usual, it’s best to start with the law. In this case,INA § 208(d)(2), which provides–
An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.
What this gobbledygook means is that asylum applicants are not entitled to an EAD, but government agencies can make rules allowing asylum seekers to get EADs. However, the soonest an asylum seeker can obtain an EAD is 180 days after he files for asylum.
Introducing the new EAD application process.
Based on this law, a government agency (the U.S. Department of Justice) created regulations that allowed asylum seekers to apply for an EAD 150 days after their asylum application was filed. Why 150 and not 180? Because the DOJ figured (optimistically) that it would take at least 30 days to process the EAD application, and so if the applicant files after 150 days, the EAD would not be issued until at least 180 days had passed. The regulations also provide that any delay caused by the applicant “shall not be counted” towards the 180 days. This is the origin of the dreaded Asylum Clock, which tracks how much time has passed since an applicant filed for asylum (and which has a tendency to behave in arbitrary ways, much to the chagrin of asylum seekers and their attorneys). So if an asylum applicant causes a delay–by rescheduling her interview, for example–the Clock would stop until the period of delay ends (in this example, the period of delay would end when the applicant attends her interview). These rules have remained largely unchanged for the past 25 years, until August 25, 2020, when new regulations went into effect.
The new rules make a number of major changes to the way EADs are processed for people seeking asylum. The most important of these rules are–
The waiting period to apply for an initial EAD based on asylum pending is extended from 150 days to 365 days. In other words, instead of waiting five months to apply for an EAD, asylum seekers now have to wait one year before applying for an EAD. This rule applies to asylum seekers who file for an initial (first time) EAD on or after August 25, 2020 (regardless of when they filed for asylum).
EADs will be denied for anyone who filed for asylum more than one year after arriving in the United States, unless an Immigration Judge or Asylum Officer determines that the applicant meets an exception to the one-year asylum-filing deadline. Such a determination cannot be made until the applicant attends an asylum interview or an Individual Hearing in Immigration Court, and so this effectively means that people who file for asylum after one year in the U.S. will not get an EAD while their case is pending. This rule applies to people who file for asylum on or after August 25, 2020.
Asylum applicants who entered the country “unlawfully” are ineligible for an EAD.
USCIS’s authority to deny EADs as a matter of discretion is expanded.
Asylum seekers have not capitulated to these changes, and there is currently at least one lawsuit challenging their validity. As of this writing, the judge in that case issued a preliminary injunction blocking the most onerous of the new rules, but only for asylum applicants who are members of two organizations involved in the lawsuit: Casa de Maryland and the Asylum Seeker Advocacy Project. This is a preliminary ruling based on the judge’s initial evaluation that many of the new rules are illegal; it is not a final decision one way or the other.
The bad news here is that the judge’s preliminary injunction blocking implementation of the new rules applies only to members of Casa and ASAP. The good news is that it does not apply only to current members of these organizations. This means that for people who are ineligible for an EAD under the new rules, you can join one of the organizations and potentially become eligible for an EAD based on the preliminary injunction. Thus, asylum seekers who are (or who become) members of these organizations are eligible to apply for an EAD after 150 days (as opposed to 365 days). Also, asylum seeker/members who filed for asylum after August 25, 2020, and who were in the U.S. for more than one year before filing for asylum, are still eligible for an EAD. You can learn more about the effect of the judge’s injunction here. You can join ASAP here, and Casa de Maryland here (you only have to be a member of one of these organization to qualify for protection under the preliminary injunction).
The other piece of good news from the injunction is that it may signal the judge’s intent to issue a favorable decision on the merits of the case, and to permanently block the new rules for all asylum seekers. When the judge will decide the merits of the case, we do not yet know.
Another unknown is the exact procedure by which members of Casa and ASAP can obtain an EAD. I reached out to an organization involved in the lawsuit, and it seems that the logistics of the process are still being worked out. In the mean time, if you think you would benefit from becoming a member of one of the organizations, you can join, so at least that piece will be in place when it comes time to apply for an EAD (and also, these are great organizations, so there are many good reasons to join).
One final note, for those seeking initial EADs or renewing expiring EADs, keep in mind that fees are going up on October 2, 2020, and that USCIS keeps revising the I-765 form. Make sure to check the website and file the correct edition of the form, and the correct fee (or fee waiver).
The Trump Administration is working overtime to make it difficult for asylum seekers to obtain status in the U.S. But thanks to asylum-rights advocates, it is often still possible to win asylum and to obtain an EAD while your case is pending.
A whistleblower named Brian Murphy recently got attention for his claim that DHS officials ordered him to stop investigating Russian interference in the 2020 election. Until he was demoted a few months ago, Mr. Murphy ran the DHS Office of Intelligence and Analysis (“DHS I&A”).
In the same complaint, Mr. Murphy also alleges that Acting USCIS Director Ken Cuccinelli ordered him to alter intelligence reports to downplay violence and corruption in Central America. These reports are used to evaluate asylum claims and by downplaying the violence, it would be more difficult for asylum seekers to win their cases. From page 9 of the complaint–
In December 2019, Mr. Murphy attended a meeting with Messrs. Cuccinelli and Glawe to discuss intelligence reports regarding conditions in Guatemala, Honduras, and El Salvador. The intelligence reports were designed to help asylum officers render better determinations regarding their legal standards. Mr. Murphy’s team at DHS I&A completed the intelligence reports and he presented them to Mr. Cuccinelli in the meeting. Mr. Murphy defended the work in the reports, but Mr. Cuccinelli stated he wanted changes to the information outlining high levels of corruption, violence, and poor economic conditions in the three respective countries. Mr. Cuccinelli expressed frustration with the intelligence reports, and he accused unknown “deep state intelligence analysts” of compiling the intelligence information to undermine President Donald J. Trump’s (“President Trump”) policy objectives with respect to asylum. Notwithstanding Mr. Murphy’s response that the intelligence reports’ assessments were consistent with past assessments made for several years, Mr. Cuccinelli ordered Messrs. Murphy and Glawe to identify the names of the “deep state” individuals who compiled the intelligence reports and to either fire or reassign them immediately.
Mr. Murphy refused to comply with this order, which he deemed illegal. What to make of this?
Looked at this way, the Trump Administration’s policies make a lot more sense.
The first question is whether Mr. Murphy’s claims can be trusted. Here, there may be some reasons for doubt: Mr. Murphy has himself been accused of altering intelligence reports to better align with the Administration’s agenda, and he has also been accused of compiling intelligence reports on journalists at the Portland, Oregon protests (allegations he denies). After this information became public, Mr. Murphy was demoted, and so there is some speculation that perhaps his whistleblower complaint was made in retaliation for the demotion. On the other hand, Mr. Murphy apparently raised many of the issues listed in the complaint well before his demotion. Also, given that the allegations raised in the complaint are largely knowable (since others beside Mr. Murphy witnessed the events in the complaint and can confirm or deny their veracity), it seems unlikely that Mr. Murphy would simply make this stuff up. But of course, I do not know for sure.
Mr. Murphy’s credibility aside, this would not be the first instance of the Trump Administration altering country condition reports to better serve its agenda. In 2018, the State Department issued reports for El Salvador, Guatemala, and Honduras that left out significant derogatory information about those countries. The bowdlerization of those reports was no secret–all you have to do is compare the previous year’s reports to the newer reports to see what has been removed. And so there is clear precedent for what Mr. Murphy is alleging.
All things considered, my sense is that Mr. Murphy’s allegations are probably accurate. If so, what then do we make of Mr. Cuccinelli, the Acting Director of USCIS?
Here, there are two points I want to discuss. First is Mr. Cuccinelli’s desire to alter the reports in order to downplay the “corruption, violence, and poor economic conditions” in the three countries. Since asylum adjudicators rely on these reports to reach their decisions, making the countries seem less bad will potentially make it harder to win asylum. I say “potentially” because there are plenty of other sources of information that give an accurate picture of country conditions in the Northern Triangle. And so if the asylum applicant submits evidence about country conditions or if the adjudicator has such evidence, white-washing the DHS reports may not make much difference in the decision.
But there is a more concerning element to Mr. Cuccinelli’s request vis-a-vis these countries: Either he really believes that the DHS intelligence analysts are lying, or he (Mr. Cuccinelli) wants the U.S. government to lie in order to better achieve the Administration’s goal of denying more asylum cases. Neither possibility is comforting.
If we rely on Mr. Murphy’s account, it seems that Mr. Cuccinelli actually thinks that “deep state intelligence analysts” are somehow undermining Mr. Trump’s asylum agenda. Given that there are many sources for information about the Northern Triangle, including newspapers, human rights reports, and previous years’ intelligence assessments, and all seem to confirm the dire situation in Central America, it is hard to believe that a rational person would find anything nefarious about the picture painted by the DHS I&A reports. Does Mr. Cuccinelli believe that all the various sources are part of the “deep state”? It’s strange, since Mr. Cuccinelli is a lawyer and should know how to evaluate evidence. If Mr. Cuccinelli really believes that a group of deep state agents is sabotaging the country reports, it seems to me that he is living in an alternate reality, and that his confirmation bias is so overpowering that he can’t accept the real world for what it is. I suppose this is a possibility, as he also denies the existence of man-made climate change, which requires a certain level of detachment from reality.
The other possible explanation is that Mr. Cuccinelli knows that the situation in the Northern Triangle is bad, but that he is simply lying in order to make it more difficult for applicants from those countries to obtain asylum. In other words, that the “means” of lying and returning migrants to face persecution is justified by the “ends” of keeping asylum seekers out of our country.
Unfortunately, the situation described in Mr. Murphy’s whistleblower complaint is emblematic of the Trump Administration, which has repeatedly used falsehoods to justify its policies. Whether it engages in those falsehoods knowing them to be false, or believing them to be true, probably doesn’t much matter. Either way, they are doing great harm to our democracy and to many of our nation’s most vulnerable people.
As you’ve probably heard, the Republican Party has not adopted a new platform for 2020. Instead, they resolved that the “Republican Party has and will continue to enthusiastically support the President’s America-first agenda.” I find this frightening.
The whole point of a platform is to get together (perhaps virtually) to discuss/debate the party’s priorities and then reach some consensus about how to proceed during the next four years. But now–in spite of significant new problems facing our country–the Republican Party has decided to simply defer to President Trump and stick with their 2016 platform. If you’re interested, I already wrote about the 2016 platform. In 2016. That an entire party, diverse in its opinions (if not its ethnic make-up), would take a pass on setting its goals, and instead agree simply to follow the leader, is deeply undemocratic.
That said, at least in terms of asylum seekers and refugees, we have a pretty good idea about what a second Trump Administration would do: Close the doors to America by every means at its disposal, including trampling due process of law (which endangers us all) and lying about the reasons why asylum seekers and refugees come here, who they are, and what they do once they get here (and of course, this never-ending mendacity also endangers us all).
Republican proposals include using a heat weapon to deter migrants.
So we have a general idea about what the Republicans would do with a second term, but what about specifics? Since the Republican Party itself won’t tell us its proposals related to asylum seekers and refugees, the intrepid reporters here at the Asylumist have scoured the internet to find out exactly what Mr. Trump has in mind if he is re-elected. Here is what we found–
The border patrol will deploy a heat ray weapon, which produces “agonizing pain” to those caught in its line of fire. The idea is that migrants caught in the device’s ray will turn back to Mexico before they become burnt toast.
ICE will continue to arrest thousands of non-citizen, thus demonstrating that it is more important to detain “illegals” in overcrowded, coronavirus-infected prisons, than to worry about public health. This also has the benefit of enriching the private-prison companies that hold immigrant detainees. In turn, those companies use their money to help bankroll President Trump’s re-election campaign. So it’s a win-win-win!
Since Mexico hasn’t paid for a wall (yet), Trump supporters have raised private funds through a group called “We Build the Wall,” which raked in $25 million from private donors who wanted to put their money where their hate is. How much wall they’ve actually built is anyone’s guess, but a number of the organization’s leaders–including ex-Trump aid Stephen Bannon–did manage to get themselves indicted for fraud. Despite this small hiccup, perhaps we can expect private funding of the border wall to continue under another Trump term.
During his first campaign, Mr. Trump famously opined that asylum seekers are bringing crime and drugs, and that they are rapists. “Some, I assume, are good people,” he said. But since most migrants are not good people, we have to continually treat them with suspicion. In that spirit, the Trump Administration wants to collect much more biometric evidence from non-citizens, including DNA samples. So essentially, immigrants will be forced to live in a surveillance state until they become citizens.
President Trump has gone back and forth about what to do for/to DACA recipients (people who came to the U.S. as children but who do not have status here). Recently, he proposed “taking care of people from DACA in a very Republican way.” Given how the Trump Administration has treated migrant children, asylum seekers fleeing gangs and domestic violence, and Muslims, the idea of being treated in a “very Republican way” does not seem all that appealing.
It’s unfortunate that we don’t have specifics from the Republicans about their immigration goals for the next four years. When a political party puts their proposals in writing, at least it requires members of the party to think through their plans, and it gives the public a clearer idea about what they hope to accomplish.
In the absence of a platform, we are left to speculate. And given the Trump Administration’s track record on asylum, refugees, and immigration, it seems unlikely that we can expect anything positive from them during a second term.
The Democratic Party has released its 2020 Party Platform, which represents the Democrats’ aspirations for the next four years. Separately, the Biden/Harris campaign has released its immigration plan. Both plans contain concrete policy suggestions (as well as plenty of hyperbole), and here I want to discuss the points that relate directly to asylum.
Before we get to that, let’s briefly look at the most important points related to immigration generally, since these proposals would also affect asylum seekers. In terms of immigration, the Democratic Party Platform seeks to accomplish the following–
Stop work on the border wall
End the Muslim ban
Protect Dreamers and parents of U.S. citizen children
End the public charge rule (form I-944)
Provide a path to citizenship for undocumented migrants living in the U.S.
Reduce immigration backlogs
Make it easier for spouses and children of Green Card holders to come to the United States
End the 3/10 year bar
Expand protections for victims of human trafficking and sex trafficking
Provide stronger work-place protections for non-citizen and undocumented workers
End workplace and community raids
Re-instate prosecutorial discretion in immigration cases
Prioritize alternatives to detention and end the practice of holding non-citizens for long periods
Consider expanding TPS (Temporary Protected Status) for people from war-torn countries
In terms of enforcement, prioritize criminals and others who threaten our national security
Reform employment-based visas for immigrant and non-immigrant workers
Provide more support services for new immigrants, so they can better integrate into U.S. society
End the use of for-profit detention centers
Increase the number of refugees admitted into the country
The Democratic Party Platform stands for the radical notion that non-citizens are human beings.
The Platform also contains a number of proposals that relate more specifically to asylum–
End policies that make it more difficult for victims of gang violence and domestic violence to receive asylum
End the criminal prosecution of asylum seekers at the border and stop separating families
End policies designed to force asylum seekers to apply for protection in a “safe third country”
End the Migrant Protection Protocols (the “wait in Mexico” policy)
Send humanitarian resources to the border to deal with the migration crisis
Send more Asylum Officers to the border, and for asylum seekers who “pass” a credible fear interview, have an Asylum Officer–as opposed to an Immigration Judge–review the full case
Double the number of Immigration Judges, court staff, and interpreters
This is an ambitious agenda, and it is certainly more pro-immigrant than what we saw during the Obama Administration. Whether these goals can realistically be implemented, I do not know.
As for the proposals related to asylum, you can see that they are largely designed to reverse policies of the Trump Administration, and they mainly apply to migrants arriving at our Southern border. Mr. Trump’s policies have been abhorrent and ineffective (and not always legal), and so we obviously need to do something different at the border. The risk is that by deploying more resources to the border, the government will be unable to interview affirmative asylum seekers, thus further increasing the backlog. Also, if Mr. Biden’s policies encourage more migrants to come here, that could further strain the system and result in a political backlash.
In terms of changing the asylum law, Mr. Biden’s only substantive proposal is to reverse Trump-era restrictions on asylum for victims of domestic violence and criminal gangs. This is an important issue, since so many asylum seekers (especially from Central America) are fleeing these types of harm. Persecution by criminals and domestic partners has not traditionally been a basis for asylum eligibility. Over years of litigation, the scope of asylum protection has expanded to include LGBT individuals, victims of female genital mutilation, and to a lesser extent, victims of domestic and gang violence (under the rubric of “particular social group”). But since President Trump came into office, his Administration has been rolling back these gains, particularly with regard to persecution by criminal gangs and domestic partners. If Mr. Biden is elected and reverses this trend, more people would qualify for protection and lives will be saved, but this could also encourage more people to seek protection in our country.
To deal with this concern, Mr. Biden’s plan includes an effort to address the root causes of migration from Central America (violence, lawlessness, impunity, and poverty). Hopefully that would help improve the situation in those countries and mitigate the number of people seeking protection in the U.S. But in terms of our immigration system, more needs to be done.
Specifically, we need an honest national conversation about who should be eligible for asylum and how many asylum seekers we should admit. Unfortunately, in the current environment, this seems impossible. But until we can have such a conversation, and reach some semblance of a consensus, asylum will remain a political wedge issue and asylum seekers will continue suffering from backlogs and shifting eligibility standards. In the event that Joe Biden takes office in January, I hope that this conversation will be part of his agenda, and that he will work with Congress and the public to reach a sustainable solution for asylum seekers.
Overall, Mr. Biden’s asylum plans seem largely reactive–he wants to reverse the damage caused by the Trump Administration. But he is also advocating for a broad immigration reform, which would benefit many non-citizens, including many asylum seekers. Even if all he did was speak truthfully about migration and respect the law, Mr. Biden would be a vast improvement over what we have now. Let us all resolve to do what we can to help Mr. Biden succeed in November and beyond.
The U.S. immigration system is a disaster. Hundreds of thousands of applicants are stuck in limbo, many cases are arbitrarily denied, and due process protections have been reduced or eliminated. While it is still possible to win individual cases, the Trump Administration has done everything possible–legal and illegal–to block asylum seekers and immigrants, and to undermine the fair implementation of our nation’s immigration laws. With the immigration system under attack, the only way to protect individual immigrants is to defend that system. But how?
Over the last 3½ years, non-citizens and their advocates have done their best to defend the immigration system. Lawsuits have sought to mitigate the Muslim ban, “remain in Mexico,” the public charge rules, and so on. Advocacy work has had some successes as well–allowing foreign students to remain in the U.S. and reducing the number of children in cages. All of these efforts have been something of a rear-guard action–trying to keep the retreat from becoming a route.
Now, with the election approaching, there is a chance to achieve real change. If Joe Biden and the Democrats take the White House, we can expect an end to many of the most egregious attacks on non-citizens. No one has a bigger stake in this election than asylum seekers and other non-citizens. But of course, as non-citizens, you are not permitted to vote or donate money to Mr. Biden or the Democrats. But that doesn’t mean you can’t participate in the election campaign. Here, we’ll talk about what you, as a non-U.S. citizen, can and cannot do. Let’s start with the cannots.
Before they can help us, we have to help them.
You cannot vote. It is illegal for anyone but a U.S. citizen to vote in a federal election. Non-citizens who vote can face fines, jail time, and deportation.
A “foreign national” cannot contribute money to a campaign, even if that contribution is indirect (for example, through a political action committee). “Foreign national” is defined as an “individual who is not a citizen of the United States… and who is not lawfully admitted for permanent residence.” Thus, if you are a non-citizen, but you have a Green Card, you are permitted to donate money to a political campaign. Note that if you have applied for a Green Card or asylum or any other immigration benefit, and you have not yet received that benefit, you cannot legally contribute money to a campaign. Even if you have an Employment Authorization Document (“EAD”), you are not eligible to make a contribution.
Also, foreign nationals cannot make “decisions concerning the administration of any political committee,” meaning basically that you cannot take a leadership or decision-making role in a campaign or an organization supporting a campaign or candidate.
Finally, foreign nationals cannot work for a candidate and receive compensation from anyone.
So much for the cannots. Now let’s look at what a non-citizen can do to help during the upcoming election.
The main thing you can do to participate in the election is to volunteer with a candidate. The Federal Election Commission (“FEC”) website provides guidance for foreign nationals who wish to volunteer during an election–
Generally, an individual (including a foreign national) may volunteer personal services to a federal candidate or federal political committee without making a contribution. The Act provides this volunteer “exemption” as long as the individual performing the service is not compensated by anyone.
What do volunteers do? The most important activity for volunteers is to encourage people to register and vote. You can do this by making phone calls to potential voters. Here, the ability to speak different languages might be very useful. There are many new Americans, who are eligible to vote, but who might be more comfortable speaking in their native language. The phone calls can be made from your own home (using an app, which does not reveal your personal phone number) and the people you are calling tend to be happy to hear from you, as they have been selected because they are predisposed to vote for a Democrat. The purpose of the call is to ensure that they are registered to vote, and that they know how to vote when the time comes.
You can also participate by sending text messages to prospective voters. Again, you can do this from home, and it really does help.
There are other volunteer opportunities available as well, not only for Joe Biden and Kamala Harris, but for “down ballot” candidates, whose election is also very important for protecting non-citizens (and all of us). For calling and texting, and other types of volunteer work, the Biden campaign provides training and support. To learn more, and get in touch with a volunteer coordinator, contact the Biden campaign here. Make sure they understand your immigration status, so they can put you to work in an appropriate capacity.
Finally, according to a federal court decision (penned by now-Supreme Court Justice Brett Kavanaugh no less), the foreign national ban–
does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting process—providing money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate.
Bluman v. FEC, 800 F. Supp. 2d 281, 290 (D.D.C. 2011), aff’d 132 S. Ct. 1087 (2012). Thus, it may be possible to make financial contributions to non-political “issue” organizations that do not mention candidates, political offices, political parties, incumbent federal officeholders or any past or future election. See AO 1984-41 (National Conservative Foundation). If you plan to contribute financially, check with the beneficiary organization to be sure that your immigration status is not a bar (and remember that Green Card holders may freely engage in political activity and make donations, as long as they do not vote).
There is a lot riding on the November election. Unfortunately, President Trump has used fear and division to mobilize many people. He has also attacked the rule of law, due process, and democracy itself. We need everyone–including non-citizens waiting to officially join our nation–to help elect Joe Biden and to preserve the republic for us all.
The Trump Administration came into office with the express goal of tightening rules related to asylum eligibility. Their efforts have resulted in reduced due process protections for asylum seekers, along with increased evidentiary burdens. Since the advent of the COVID-19 pandemic, the Administration’s anti-asylum rule making has gone into overdrive. If recently proposed regulations go into effect, asylum seekers could be denied protection simply for having passed through a third country or for having failed to pay taxes. Worse, these new rules will likely apply retroactively, thus potentially disqualifying some asylum seekers for choices they made years ago. While the asylum process was never easy, all these recent changes have made it much more difficult to successfully navigate the system, especially for those without legal representation. Here, we’ll review some data about asylum grant rates, discuss the process of seeking asylum, and talk about how a lawyer can help.
Data on Asylum Seekers
Unfortunately, it has never been easy to obtain solid statistics about asylum grant rates. One problem is that different asylum cases are adjudicated by different agencies. “Affirmative” asylum cases (where the applicant is inside the United States and initiates a case by submitting an asylum form) and “credible fear” cases (where the applicant presents at the border and requests asylum) are adjudicated by the Department of Homeland Security, by an asylum officer. “Defensive” cases (where the applicant requests asylum as a defense to being deported) are adjudicated by an immigration judge at the Department of Justice. Different agencies track data differently, so we do not have solid statistical information about overall grant rates. But we do have some pretty good data demonstrating that asylum grant rates are trending down and that having a lawyer helps.
According to TRAC Immigration, a nonprofit that collects and analyzes data from our nation’s immigration courts, pro se asylum applicants in 2019 and 2020 were granted asylum in about 13 percent of cases. During the same period, represented applicants received asylum in about 30 percent of cases. So, having a lawyer more than doubles the likelihood of a positive outcome. Also, the data indicates that it is getting more difficult to win asylum. In 2012, about 55 percent of asylum cases (represented and pro se) were granted. Since then, grant rates have dropped—to 41 percent at the beginning of President Donald Trump’s term and to about 25 percent by March 2020.
The world’s most powerful superheroes (pro bono attorney, second from right).
The Asylum Process
As noted above, there are two basic paths to asylum: affirmative and defensive. In addition, asylum seekers who arrive at the border or an airport and request protection undergo a credible fear interview, which is an initial evaluation of eligibility for asylum.
In an affirmative case, the applicant completes a form and an affidavit describing his fear of harm, gathers and submits evidence in support of the claim, and is eventually interviewed by an asylum officer. For a defensive case, the applicant typically appears before an immigration judge two times. The first appearance is called a master calendar hearing, which only takes a few minutes. At that stage, the judge determines whether the applicant is “removable” from the United States and what relief she is seeking (asylum and/or other types of relief). The judge then sets a date for the individual hearing (the trial), where the applicant presents her claim for asylum through evidence and testimony. Neither process is fast, and it is common for an asylum case to take several years.
A credible fear interview is more truncated. Most applicants have little or no evidence when they first arrive, and so their testimony becomes more important. If they demonstrate a “credible fear” of persecution in their home country, they are referred to an immigration judge to present a defensive asylum case. If they do not demonstrate a credible fear, they are usually quickly deported from the United States.
Preparing an asylum case—affirmative or defensive—can be challenging. The attorney needs to work with the client to write a detailed affidavit describing the asylum claim. This often involves discussing painful events from the client’s past. Obtaining evidence from other countries can also be difficult, as witnesses are overseas and may be reluctant to risk their safety by writing a letter or sending documents. In preparing a case, the attorney needs to resolve any inconsistencies between the affidavit, evidence, and country conditions, since inconsistencies can lead to a finding that the applicant is “not credible.” Also, the attorney must articulate a legal theory for the case; not everyone who fears harm in the home country is eligible for asylum, and so the attorney must examine the facts and determine the basis for eligibility. Finally, some applicants may be barred from asylum—for example, because they failed to timely file their application—and so the attorney must identify and address any legal bars to asylum.
How Pro Bono Lawyers Can Help
All this can be daunting, even for a lawyer who specializes in asylum. So, how can a pro bono attorney—who may not be familiar with this area of the law—help?
On this front, the news is good. Most asylum cases are relatively straightforward, and anyone with legal training and a bit of guidance can make a positive difference in the outcome. Also, excellent support and mentoring is available for lawyers who decide to take on a case pro bono. In representing asylum seekers, most pro bono lawyers work with a nonprofit organization, and these organizations are expert at identifying compelling cases and providing support to attorneys who do not specialize in asylum. (For some ideas about where to volunteer, check out these immigration nonprofits). Finally, while asylum cases can take years (due to government delay), the amount of attorney time needed to properly prepare and litigate a case is quite reasonable. Total prep time for a case is usually between 15 and 30 hours. For an affirmative case, applicants have only one interview, and those usually take three to five hours. Court cases usually involve two hearings: The master calendar hearing might involve waiting around for an hour or two, but the hearing itself requires only about five minutes with the immigration judge. The individual hearing (the trial) typically takes two to four hours. So, all together, the time investment is not terribly burdensome.
As for credible fear interviews, because they are not full cases and because they take place within a day or two of the applicant’s arrival in the United States, they require even less attorney time. In some cases, there is no time to prepare in advance, and the attorney’s role is simply to make sure that the asylum seeker’s interview is fair. Other times, it is possible to gather country condition evidence or other evidence in advance of the interview.
What’s It Like to Do an Asylum Case?
Having myself represented hundreds of asylum seekers, what keeps me interested are the clients’ stories. Of course, many of these stories are sad, but they are also hopeful. Asylum seekers are survivors. They have escaped danger in order to build a better life. Many asylum seekers are well-educated, successful people: politicians; activists for democracy, women’s rights, or LGBTQ rights; interpreters who’ve served with the U.S. military; members of religious or ethnic minorities; journalists. Asylum seekers I have known tend to be very patriotic towards the United States, and my clients’ faith in the American Dream is a source of constant inspiration for me.
The asylum process today is more difficult than ever. Many applicants with valid claims will be denied and deported unless they have help from an attorney. Equally important, applicants need someone in their corner to answer questions and provide moral support. Representing an asylum seeker pro bono can help change your client’s life. It can also be one of the most rewarding experiences of your legal career.
This article is by Jason Dzubow and was originally published in GPS Solo, Volume 9, Number 12, July 2020. Copyright 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
The Master Calendar Hearing–where dozens of people are squeezed into a room and forced to wait for hours in order to talk to a Judge for two minutes–has always been a headache and a waste of time. Now, though, as the coronavirus pandemic continues unabated, attending an MCH seems downright dangerous (lucky for us, we have an associate attorney who covers our MCHs – Don’t forget to wash your hands when (if) you get back!). I’ve written before about alternatives to the MCH, and given the expanding pandemic and the need for social distancing, now seems a good time to re-visit some of these ideas.
Before we get to that, I should mention that MCHs are not the only place where groups of non-citizens are packed together against their will. Far worse are our nation’s ICE detention facilities and private prisons, where conditions were already quite bleak (in the two years before the pandemic, 21 people died in ICE custody). Unfortunately, ICE has not taken effective action to protect detained asylum seekers and other non-citizens from the pandemic (at one facility in Virginia, for example, nearly 75% of detainees tested positive for COVID-19), and the agency seems to have little regard for the health of its detainees (or staff). As a colleague aptly notes, Anne Frank did not die in a gas chamber; she most likely died from typhus, which was epidemic in her detention camp.
Also, it’s worth noting that the National Association of Immigration Judges (the judges’ union) has been working hard for safer conditions in our nation’s Immigration Courts, even if EOIR management has been hostile to some of those efforts. Currently, non-detained MCHs have been suspended, but so far, there is no EOIR-wide policy for what to do instead. Some Immigration Judges and individual courts have made it easier to submit written statements in lieu of MCHs, but the process is still needlessly awkward and time consuming.
MCHs are no more efficient today than they were in olden times.
While we need a short-term fix so that MCHs can go forward during the pandemic, here I want to talk about longer-term solutions. Below are a few ideas for replacing in-person MCHs. While these ideas may not work in all cases, they will help most respondents (and their attorneys) avoid attending MCHs. This would save time and money for people in court, and would also save time and resources for the courts themselves, and for DHS. In addition, reducing the need to appear in person would help prevent the spread of disease. In short, doing away with MCHs is an all around win. So without further ado, here are some ideas to get rid of those pesky Master Calendar Hearings–
e-Master Calendar Hearings: EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–has been working towards electronic filing for decades, and in some courts, limited online filing is available. Given that the infrastructure is being put into place for online filing, EOIR should create an online MCH. There already exists a system for written MCHs, but this is a huge pain in the neck. It involves a burdensome amount of paperwork, and judges don’t always respond to the documents we file. This means that we lawyers do double work–we submit everything in writing and we have to attend the MCH. Given how unreliable it is, many attorneys (including yours truly) would rather attend the MCH than try to do it in writing.
An effective and reliable e-MCH would be easy to use and efficient. Most cases fit a clear pattern: Admit the allegations, concede the charge(s), indicate the relief sought and language spoken, designate the country of removal, and obtain a date for the Individual Hearing. For attorneys and accredited representatives who are registered with EOIR, this could all easily be accomplished through an online form, thus saving time for all involved.
Orientation Sessions for Unrepresented Respondents: One difficulty during the typical MCH is attending to unrepresented respondents. People who come to court without a lawyer tend to take more time than people who have attorneys. This is because the attorneys (usually) know what is expected at the MCH and are (hopefully) ready to proceed. For people without lawyers, the Immigration Judge (“IJ”) needs to explain what is going on, often through an interpreter. All this takes time and seems like busy work for the IJ (who often has to repeat the same litany multiple times during each MCH). Why not provide pre-MCHs with court staff instead of judges? There, unrepresented respondents can received a basic orientation about the process and be encouraged to find a lawyer. These sessions could be organized by language. Respondents who indicate that they will return with a lawyer can be given a deadline by which the lawyer can either submit the necessary information online (if e-MCHs have been implemented) or come to court if need be. Respondents who will not use a lawyer can be given a date to return for an in-person MCH with a judge. Even if e-MCHs are not implemented, having an orientation session would save significant time for judges and would make MCHs more efficient.
Empower DHS: In Immigration Court, the “prosecutor” works for the Department of Homeland Security (“DHS”). Most DHS attorneys are overwhelmed and overworked. They have little time to review cases in advance or to speak with opposing counsel prior to the MCH or the Individual Hearing. What if there were more DHS attorneys? What if we could pre-try cases, narrow issues, and maybe even hold depositions? If issues could be hashed out ahead of time, we could shorten or eliminate the need for a MCH, and we could make Individual Hearings more efficient.
All this seems pretty basic. The Immigration Courts are overwhelmed. Reducing or eliminating MCHs will free up judges to do substantive work. It will also save time for DHS, respondents, and their attorneys. And of course, given our new normal with the coronavirus, it will help keep everyone safe. Changes to the MCH system are long overdue, and are especially urgent due to the pandemic. Let’s hope that EOIR can finally rise to the occasion.
What do you think would happen if a client came to my office (virtually), hired me, paid me money to file a case, and then I did not file the case and refused to return the client’s money? Here’s what I think would happen–the client would sue me to get the money back, and I might be dis-barred. Also, I could go to jail.
So what happens when a person hires USCIS to adjudicate an application for a work permit or a Green Card, pays money to the agency, USCIS determines that the person qualifies for the benefit, but then refuses to issue the document? Apparently, nothing happens. The agency keeps the money and the applicant is SOL. That is exactly what we are seeing these days for people approved for an Employment Authorization Document (“EAD”) or a Green Card.
According to a recent article in the Washington Post, “In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing [Green Cards and EADs].” “Production was slated to be insourced, but the agency’s financial situation… prompted a hiring freeze that required it to ratchet down printing.” As of early July, about “50,000 green cards and 75,000 other employment authorization documents promised to immigrants haven’t been printed.” These are documents that the applicants paid for and qualified for, and which they need to live and work in the United States.
You may be be surprised to learn that the Trump Administration won’t always give you what you pay for.
The Administration is blaming the problem on the pandemic, which it says has impacted USCIS’s budget. But that is not the whole story. Like many agencies under President Trump, mismanagement and hostility towards the agency’s mission have resulted in budget woes that long precede the coronavirus. According to an article by the Migration Policy Institute, USCIS essentially made a profit from fee receipts every year between FY2008 and FY2018 (data was not available for prior years). But starting in FY2019 (which began on October 1, 2018–well before the pandemic), the agency started running a deficit. The basic reasons are “falling petition rates… and increased spending on vetting and enforcement.” As MPI notes–
Alongside declines in petitions, USCIS has increased spending on detecting immigration-benefit fraud and on vetting applications. Anti-fraud costs more than doubled from FY2016 to FY2020, rising from $177 million to $379 million. Vetting nearly tripled during that period, from $53 million to $149 million. In addition, enhanced vetting appears to be decreasing productivity. USCIS adjudicated 63 percent of its pending and incoming caseload in FY2016. The adjudication rate dropped to 56 percent in FY2019. Over that same period, despite falling application rates, the backlog of pending petitions grew by 1.4 million, to 5.7 million. As a result, processing times for most types of petitions have increased, with some more than doubling.
According to the Washington Post, it’s not likely that USCIS’s budget will recover any time soon–
Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another The centers that collect necessary biometric data remain shuttered. These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.
Many employees at USCIS have already received furlough notices, and unless Congress steps in with a $1.2 billion fix, approximately two-thirds of the agency’s employees will be out of work by early next month. And as we’ve seen, the agency’s budget shortfall is already having an effect–more than 125,000 people have not received Green Cards or EADs, even though they paid for, and qualified for those documents (a few documents are still being produced–one of our clients received an EAD last week).
If you are waiting for a Green Card or an EAD, what can you do?
First, for anyone with a delayed card (where the card has already been approved), apparently the USCIS Ombudsman is trying to assist. If you are waiting for an approved Green Card or EAD, the first thing to do is place an online request for case assistance with the Ombudsman. You can do that here. The Ombudsman is “sending weekly spreadsheets to USCIS to verify card requests are in line to be processed.”
For people who have been granted asylum, you are eligible to work even without an EAD (using your asylum approval document or I-94, your Social Security card, and a photo ID).
If you are waiting to receive an approved Green Card, you might try calling USCIS at 800-375-5283 to request an appointment at the local field office. Field offices can place an “I-551” stamp (also called an “ADIT” stamp) in your passport, and this indicates that you are a lawful permanent resident (a Green Card holder). Due to the pandemic, USCIS offices are closed for most in-person appointments, but if you have an “urgent need” for the I-551 stamp, you may be able to obtain an appointment. An example of an urgent need might be that you will lose your job unless you have proof of status. Maybe get a letter from your employer explaining the need, so you will have that when you try to make an appointment, and when you go to the USCIS field office.
If you have a pending asylum case and are waiting to receive an approved EAD, you might also try calling USCIS. You can ask the agency to expedite the card. However, it seems unlikely that they can do so–one USCIS employee states, “Our volume of inquiries [has] spiked concerning cases being approved, but the cards [are] not being produced… A lot [of the inquiries] are expedite requests, and we can’t do anything about it; it’s costing people jobs and undue stress.” Nevertheless, since some EADs are still being issued, perhaps a call is worth a try.
Finally, you might contact your representatives in Congress (in the House and Senate). Ask them to fund USCIS, and remind them that “Congress… must also exercise its constitutional oversight authority to create and boost meaningful accountability, transparency, and productivity within USCIS.” If Congress does not get involved, USCIS will largely shut down in a few weeks. But USCIS does not deserve a blank check. Congress should ensure that the agency uses the money to fulfill its core mission, and that it gives people what they paid for.
Way back in 2010, I did a blog post about the Board of Immigration Appeals, where I complained that the Board issues too few decisions and does not provide enough guidance to Immigration Judges. Ten years later, things are no better. In fact, based on the available data, the Board is publishing even fewer decisions these days than it did back in the late aughts. Here, we’ll take a look at the situation in 2010, and then review where things stand now.
Before we get to that, we have to answer a preliminary question: What is the Board of Immigration Appeals? According to the BIA Practice Manual—
The Board of Immigration Appeals is the highest administrative body for interpreting and applying immigration laws. The Board is responsible for applying the immigration and nationality laws uniformly throughout the United States. Accordingly, the Board has been given nationwide jurisdiction to review the orders of Immigration Judges and certain decisions made by the Department of Homeland Security (DHS), and to provide guidance to the Immigration Judges, DHS, and others, through published decisions. The Board is tasked with resolving the questions before it in a manner that is timely, impartial, and consistent with the Immigration and Nationality Act and regulations, and to provide clear and uniform guidance to Immigration Judges, DHS, and the general public on the proper interpretation and administration of the Immigration and Nationality Act and its implementing regulations.
Having completed their one published decision for the year, some BIA Board Members take a well-earned rest.
In essence, the BIA is supposed to be the Supreme Court of immigration law. But because the Board issues so few published decisions, it is not fulfilling its duties to provide guidance or ensure that laws are applied uniformly throughout the country. This is not a recent problem.
If you look back at the data from a decade ago, you will see that in 2007, the BIA decide a total of 35,394 cases and had 45 published decisions. In 2008, it decided 38,369 cases and published 33 decisions, and in 2009, it decided 33,103 cases and published 34 decisions. This means that for every 1,000 cases the Board decides, it publishes about 1 case. Looked at another way, during 2007, 2008, and 2009, the Board had about 15 Members (judges on the BIA are called Board Members). This means that in its most prolific year (2007), each Board Member would have had to publish three cases. I’m told that publishing a case is a real production, but even so, three cases per year? That seems pretty weak. The not-very-surprising result is that the Board is not providing the guidance that Immigration Judges need, and this contributes to a situation where different adjudicators are interpreting the law in widely inconsistent ways.
Fast forward 10 year and the situation is no better. In FY2016, the Board decided 33,241 cases and in FY2017, it decided 31,820 cases. In each year, the Board published just 27 decisions. In FY2018, the Board decided 29,788 cases and published 38 decisions, and in FY2019, the BIA published 22 decisions (EOIR has not released data about the number of cases adjudicated by the Board in FY2019). Indeed, in 2018 and 2019, the situation is even worse than these numbers suggest. That’s because in 2018, of the 38 published BIA decisions, 15 were actually decided by the Attorney General (meaning only 23 were decided by the BIA). In 2019, the AG published six cases, meaning that the Board itself published a paltry 16 decision, or–given the expanded number of Board Members–less than one published decision per Member.
Let’s digress for one moment to discuss the difference between an Attorney General decision and a BIA decision. The BIA derives its decision-making authority from the Attorney General. This means that the AG has power to decide immigration appeals, but he has given that authority to the specialists on the Board, who presumably know more about immigration law than their boss. However, because decision-making power ultimately comes from the AG, he can “certify” a case to himself and then issue a decision, which has precedential authority over Immigration Judges and over the Board itself. This means that if the Board issues a decision that the AG does not like, he can change it. Prior to the Trump Administration, AGs generally deferred to the Board and rarely certified cases to themselves for decisions. In the last two years of the Obama Administration, for example, the AG issued a total of three published decisions, two in 2015 and one in 2016, as compared to 21 AG decisions in 2018 and 2019 (to be fair, the Trump Administration did not issue any AG decisions in 2017). The main reason for the AG to issue decisions is to more forcefully implement the current Administration’s immigration agenda. Many who work in the field oppose this type of politicization of the immigration law, and organizations such as the National Association of Immigration Judges (the judges’ union) have been pushing for an independent court system.
Aside from politicization of the law, one result of the AG’s more active role in issuing decisions has been to sideline the BIA. I imagine this is not good for morale. Essentially, the “Supreme Court of Immigration Law” has been relegated to deciding unpublished decisions, which contribute little to improving the overall practice of law.
In any event, it has always surprised me how few decisions the BIA publishes. Chapter 1 of the BIA Practice Manual provides: “Decisions selected for publication meet one or more of several criteria, including but not limited to: the resolution of an issue of first impression; alteration, modification, or clarification of an existing rule of law; reaffirmation of an existing rule of law; resolution of a conflict of authority; and discussion of an issue of significant public interest.” Frankly, it is difficult to believe that fewer than one case in one thousand satisfies these criteria. As I wrote in 2010–
Although it might be more work over the short term, if the Board published more frequently, Immigration Judge decisions would become more consistent–creating less work for the BIA over the long term. It would also make life easier for the federal courts of appeals, saving government resources. Finally–and most important from my point of view–it would create more certainty and predictability for immigrants and their families.
All this remains true. But after three years of the Trump Administration appointing Board Members, many of whom are considered hostile to immigrants, perhaps now is not the time to complain about too few published decisions. Maybe. But I still think there exists a desperate need for guidance and consistency, and even the “unfriendly” Board Members are more inclined to follow the law than our current AG. In addition, there are many mundane, non-political issues that simply need deciding (such as this recent BIA decision). Despite the more hostile make-up of the Board, I still believe–as I believed ten years ago–that the BIA should embrace its role as “the highest administrative body for interpreting and applying immigration laws” and publish more decisions.
Horace Walpole famously observed that the world is a comedy to those who think, and a tragedy to those who feel. That about sums up my view of the Trump Administration’s immigration policies: They are so ludicrous and so removed from reality that they would be funny if it weren’t for the fact that people are dying. The most recent proposed regulation neatly fits into this dichotomy; it is as absurd as it is harmful.
Using the pandemic as an excuse, the Administration proposes expanding an existing bar–applicable to aliens deemed a “danger to the security of the United States”–to deny asylum to “aliens who potentially risk bringing in deadly infectious disease to, or facilitating its spread within, the United States.” As usual, the main targets of this latest policy are aliens seeking asylum at the Southern border, but other applicants might be effected as well. Also, unlike some of the prior bans, this one specifically targets non-citizens seeking protection under the United Nations Convention Against Torture.
Let’s start with the law. Under the Immigration and Nationality Act (“INA”), there are several “bars” to obtaining asylum. These bars prohibit granting asylum to aliens who (1) “ordered, incited, assisted, or otherwise participated” in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States”; (4) are a “danger to the security of the United States”; (5) are involved in terrorist-related activities; or (6) were “firmly resettled in another country prior to arriving in the United States.”
Gesundheit! That’s German for “Asylum Denied.”
Do you notice anything about these different bars? Except for number 6, they all involve people doing bad things. While “danger to the security of the United States” could theoretically be interpreted to include sick people, when considered in relation to the other bars, that interpretation doesn’t make a lot of sense. Indeed, there is a principle of statutory construction called ejusdem generis, which basically says that when you have a list that contains a vague term, you should interpret that term consistent with other items on the list. The BIA famously invoked ejusdem generis (and called it a “well-established doctrine”) in Matter of Acosta, when it interpreted the meaning of particular social group. So it seems more than a small stretch for the Trump Administration to define “danger to the security of the United States” in such broad terms, and we can hold out some hope that this provision will be struck down because it violates the INA (and, by the way, the proposed regulation invokes similar logic to try to block people from obtaining Withholding of Removal).
Assuming the new rule goes into effect, what constitutes a danger to security? According to the proposed regulation, “In determining whether there are reasonable grounds for regarding an alien or a class of aliens as a danger to the security of the United States… the Secretary of Homeland Security may consider whether the alien exhibits symptoms consistent with being afflicted with any contagious or infectious disease or has come into contact with such disease, or whether the alien or class of aliens is coming from a country, or a political subdivision or region of that country, or has embarked at a place, where such disease is prevalent or epidemic.” So if an alien seems sick, or if she traveled through an area that the U.S. government believes contains an epidemic, she will be barred from asylum. Worse, this regulation gives the government the power to bar a “class of aliens” from asylum. Presumably, that would be aliens from a particular country, or who passed through a particular area.
While this rule applies to all asylum seekers, I suspect that if it is implemented, it will mostly affect those who arrive at the border (or an airport) and request protection. Such aliens undergo a credible fear interview (an initial evaluation of asylum eligibility). If the alien “passes” the credible fear interview, he can present his claim to an Immigration Judge, who then grants asylum, some other relief, or orders the person deported. Up until now, the asylum bars did not apply to credible fear interviews. However, under the proposed regulation, an alien subject to a bar would “fail” the credible fear interview and likely be deported. This means that if an alien comes from, or passes through, an area where an epidemic is prevalent, or if she appears sick, her request for protection in the U.S. will be automatically rejected.
Let’s think about this for a moment. Under this new rule, if a person was imprisoned, beaten and raped due to her political opinion, and then she escapes her country, she will be denied protection in the United States and sent home simply because she traveled through an area that is experiencing an epidemic. Even if she herself is not sick! How nice.
One last element of this proposed regulation that I want to discuss is the rule related to Convention Against Torture (“CAT”) relief. Under the CAT, the U.S. cannot return a person to a country where he will be tortured. There are essentially no exceptions to this rule. But the proposed regulation seeks to change this–
If the alien makes this showing [that he is more likely than not to suffer torture in the home country], then DHS can choose in its discretion to place the alien in [Immigration Court] proceedings… or return the alien to a third country under appropriate standards.
In other words, when the alien arrives at the border to request protection, she must show that it is “more likely than not” that she will be tortured in the home country. This is a very high standard of proof for someone just arriving in the U.S. who likely does not understand the asylum system or have access to a legal counsel. Further, even if the alien somehow manages to demonstrate that she will be tortured in the home country, DHS can simply choose to send her to a third country (and this can happen–the Trump Administration has bullied or convinced Guatemala to accept some asylum seekers). Basically, we get to wash our hand of our responsibility to protect torture survivors.
The only saving grace here is that this regulation is so poorly thought out that it is susceptible to a court challenge. Also, it seems to me that there is a much easier way to determine whether an asylum seeker is a “danger to the security of the United States” due to disease: Give him a test for that disease. If he is negative, there is no reason to bar him from asylum. If he is positive, maybe–I don’t know, this may sound crazy–help him get better. Treating human beings humanely. Sadly, it’s a novel concept in Trump’s America.
Let’s say I give you a million dollars (which I can easily do, given my lucrative earnings as an asylum lawyer). Let’s also say I put that money on the moon. Even though its yours, you can’t get it, and so it won’t do you any good. That’s basically what the Trump Administration is trying to do with asylum.
Under U.S. law, non-citizens in our country have a right to seek asylum. But that right is meaningless unless applicants have the means to live here during the lengthy asylum process. On August 25, 2020, the Trump Administration plans to implement a new regulation, which denies Employment Authorization Documents (“EADs”) to some asylum applicants and delays the issuance of EADs to everyone else. The pretextual (lawyer-speak for bullshit) reason for the new rule is to prevent fraud. The real reason is to deter people from seeking asylum in the United States. Here, we’ll discuss the major provisions in this new regulation.
The first major change is the waiting period for an EAD. Until now, the regulations allowed asylum seekers to file their EAD application (form I-765) 150 days after their asylum application (form I-589) was received. Processing the I-765 usually took a few months, and so most asylum seekers would have their EAD card in hand within seven or eight months of filing for asylum. Under the new rule, asylum applicants must wait 365 days before filing for their EAD, and then wait a few more months for processing. This means that most applicants probably won’t have their EAD until at least 14 months after submitting the I-589. This new rule seems to apply to everyone who files for an EAD on or after August 25, 2020, even people who filed for asylum before that date. So if you are eligible for the initial EAD prior to August 25, you should file before that date. Otherwise, you will face an additional six months (or more) of delay.
No EAD? No problem. You can live off your trust account until you receive asylum.
The second major change is that people who file for asylum on or after August 25, 2020, and whose asylum application was not filed within one year of arriving in the United States, will be ineligible for an EAD “unless and until the asylum officer or immigration judge determines that the applicant meets an exception for late filing” or unless the applicant is an unaccompanied child. Sine the one-year bar will usually not be adjudicated until the asylum case is adjudicated, this new rule effectively means that people who do not file for asylum within one year of arriving in the country will not get an EAD. Again, this provision applies only to people who file for asylum on or after August 25, 2020. Also, even if you clearly meet an exception to the one-year rule, you would not be eligible for an EAD if you were in the U.S. for more than one year before filing for asylum (examples of people who are ineligible for an EAD include those who have maintained lawful status during their entire stay in the U.S. before filing, and people who decide to seek asylum after circumstances in the home country changed, causing them to fear return).
Third, applicants who “entered or attempted to enter the United States at a place and time other than lawfully through a U.S. port of entry on or after August 25, 2020” are not eligible for an EAD. There are rare exceptions enumerated in the rule, but for the most part, people who enter the U.S. unlawfully and file for asylum will be barred from obtaining an EAD.
Fourth, it seems that people who move before they get an EAD are considered to have “delayed” their case if the move transfers their case to a different Asylum Office. They thus become ineligible for an EAD (“Delay” includes “A request to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address”). For this reason, you should try not to move out of your Asylum Office’s jurisdiction from the time of filing until you get the EAD (you can see your office’s jurisdiction here).
Also, previously, asylum seekers who were paroled into the United States after “passing” a credible fear interview were eligible for an EAD based on category c-11. The new rule eliminates this basis of EAD eligibility, though such parolees could still apply for asylum and then file for an EAD after the 365-day waiting period.
Other provisions of the new rule basically codify existing practice. For instance, people who cause delay in their asylum cases and people who have criminal issues will likely be denied an EAD.
The new EAD rules are particularly damaging when considered along side another proposed rule, which would deny asylum to people who work unlawfully and fail to pay taxes. The combined effect of these new regulations will be that asylum seekers are either forced to work illegally, thus jeopardizing their asylum claims, or they are forced to find some way of surviving in the U.S. for 1+ years without the ability to earn money.
On the positive side (and these days, we sorely need positive news), people who have EADs can continue to renew them in two-year increments, even if their asylum case is referred to Immigration Court or if they lose their case in court and appeal to the Board of Immigration Appeals.
Given these changes, if you are planning to file for asylum and you entered unlawfully or have a one-year bar issue, you should file before August 25, 2020, when these rules are scheduled to go into effect. Also, if you are planning to seek asylum, you should file your application within one year of arriving in the United States, even if you would qualify for an exception to the one-year bar (again, to be clear, you can still overcome the one-year bar and receive asylum, but you will not receive an EAD while you are waiting for a decision in your case).
One remaining question is whether these new regulations might be blocked by a federal court. I suspect that there will be a court challenge to the rules. If such a challenge succeeds, my guess is that it will succeed on procedural grounds–in other words, that the Trump Administration failed to adequately justify the new rule (this is the basic reason that the Administration’s efforts to end DACA failed). Asylum seekers have no right to an EAD. See INA § 208(d)(2). However, given that it is impossible to obtain asylum unless you have the ability to survive in this country during the pendency of your case, there may be a basis to challenge this new rule. Let’s hope so.
As you probably know, the Trump Administration recently proposed regulations to make it much more difficult to obtain asylum in the United States. That’s the bad news. The good news is that there is something you can do to try to reduce the damage: Submit a comment opposing the regulation. Submitting a comment is easy, free, and safe, even for people with no lawful status in the U.S. You can do it from the comfort of your own home. Right now. And best of all, it really can help. Here, we’ll talk about how to submit an effective comment.
Before we get to that, let’s talk a bit about the proposed regulation, which you can see here. The purpose of this regulation (and every regulation) is to interpret the law, as created by Congress. Regulations are created by government agencies (in our case, by the Department of Justice, Executive Office for Immigration Review) because agencies have specialized knowledge about how to implement (or in our case, subvert) the law. The regulations cannot violate the law or they will be invalidated by courts. Also, regulations cannot be “arbitrary and capricious,” meaning the agency must provide a rational reason for the regulation. While there is a lot of bad stuff in the proposed regulation, I wanted to focus here on the points that people might be most interested to comment about–
The definition of “particular social group” is narrowed, so that it is more difficult to get asylum if you fear harm from gang members or criminals, or based on domestic violence or an interpersonal dispute
The definition of “political opinion” is narrowed to exclude people who have a generalized opposition to criminals or terrorists
The level of harm required to demonstrate “persecution” is increased, and so asylum applicants will need to show a “severe level of harm”
The categories of people eligible for asylum are reduced, and people who fear persecution on account of “gender” are excluded from asylum
The new rule encourages decision-makers to deny otherwise-eligible applicants based on “discretion” and lists several “significant adverse discretionary factors,” including–
unlawful entry into the U.S. or use of fraudulent documents
the failure to seek protection in any third country the alien “transited” through, unless that country denied protection to the alien, the alien was a victim of human trafficking or the country was not a party to the Refugee Convention of 1951, the Protocol of 1967 or the United Nations Convention Against Torture
remained unlawfully in the U.S. for more than one year before seeking asylum
failed to file or pay taxes, if required
failed to report income to the IRS (i.e., worked without authorization and did not pay tax – this one will be a particular problem if the plan to delay and deny work permits for asylum seekers goes into effect)
Otherwise-eligible applicants will be denied asylum as a matter of discretion where they spent more than 14 days in a third country before coming to the U.S. or where they transited through more than one third country before coming to the U.S. (there are some exceptions to this rule, similar to those listed for the prior bullet point about “transit” through a third country)
Applicants will be denied asylum where they “either resided or could have resided in any permanent legal immigration status or any non-permanent, potentially indefinitely renewable legal immigration status… in a country through which the alien transited prior to arriving in or entering the United States, regardless of whether the alien applied for or was offered such status”
Torture Convention relief is not available where the torturer is a “rogue” official
Finally, it is not clear, but as the regulations are written, they could be applied to people who already have asylum cases pending. Obviously, this would be unfair, as it would punish applicants for choices they made years ago (if the rules are applied retroactively, they might very well be blocked by a legal challenge)
Other significant adverse discretionary factors include filing for asylum, fearing persecution, and not being an American citizen.
If there are things here you don’t like, you can comment about them. How to do that?
First, go to this web page, where the proposed regulations are posted. If you look in the upper right part of the page, you will see a dark blue box that says “Comment Now!” Click on that, and you will be taken to a page where you can type your comment. If you want to be fancy, you can even attach files to your comment. You also have to type a name. You can type your own name, but you can also write “anonymous.” The name you type will be included when the comment is posted publicly. There is an option to include your contact information, but this information will not be displayed publicly. Once you are done, check the box indicating that you “read and understand” your statement and hit “Submit Comment.” That’s it. Easy peasy.
While you are on the regulation web page, you can look to see what other people wrote (on the right side of the page). When I last checked, there were more than 1,300 comments.
What should you say?
It is best to write an individualized statement, rather than use a pre-made template. If you are an asylum applicant, maybe think about any parts of the new regulation that might harm you and explain how you will be harmed. You might also write about why you chose to seek asylum in the U.S. (if, indeed, you had a choice) and what is your impression of the U.S. asylum system. Remember, as an asylum applicant, you have something important to say and your voice should be part of this conversation. One important point: All comments must be submitted prior to 11:59 PM Eastern time on July 15, 2020. Also, if you post a comment, and you don’t mind, please copy and paste what you write into the comments section of this blog (below).
If you’d like some additional advice about what to write, check out these postings by Tahirih Justice Center and the American Immigration Lawyers Association (AILA), or just read the comments already posted on the regulation. The federal government also provides general, but helpful, advice about writing a comment.
Finally, you might ask, Does posting a comment matter?
Apparently, it does. According to AILA, “The administration will review and address those comments before the rule becomes finalized, so it is critical for us to submit as many unique comments as possible.” More comments = a longer review process. This will buy more time before these draconian new rules are implemented. Also, the “government gives more weight to each comment if it is unique from others,” and so it is important to personalize your submission.
Since its inception, the Trump Administration has been waging war against the rule of law in our country. Immigrants and asylum seekers have always been the first target in this war, but they are far from the only target. In this particular battle, asylum seekers have a crucial role to play, and so I hope you will consider making a comment in opposition to the proposed regulations. Together, we can protect our asylum system and our country.
[Updates to this post will appear at the bottom of the article]
There is an overwhelming amount of bad news these days. You’ve probably heard about the coronavirus pandemic and the upheavals caused by racial injustice, but in the last couple weeks, there has also been a flurry of bad news in immigration-world. We could spend months dissecting all that has happened, but here I just want to alert you to the highlights (or low-lights) of recent developments. Without further ado, then, let’s get this over with–
(1) The Administration has proposed sweeping new regulations that would dramatically impact asylum seekers. The main targets of these changes are (as usual) asylum seekers from Central America and Mexico–people fleeing gang violence and domestic violence–and people arriving at the Southern border and requesting asylum. But the proposed changes affect all asylum seekers. For an overview, see this brief article and this more detailed analysis, both by Aaron Reichlin-Melnick.
The new rule seeks to block asylum seekers who passed through a third country to reach the U.S., who failed to pay taxes or worked without authorization, and who have more than one year of unlawful presence in the United States. It also allows judges to “pretermit” (deny) asylum cases where the applicant has not set forth a prima facia case for asylum (this will be a particular problem for pro se applicants, who may not know how to articulate a valid claim). The regulation also narrows the definitions of “particular social group” and “political opinion” in order to more effectively block people who face violence from non-state actors. Further, the regulation raises the bar as to what constitutes “persecution” under the law, and encourages denying asylum based on discretion. Many of these rules are meant to affect people who have already filed for asylum, and could not have known about these burdensome new regulations when they asked for protection. While my take on all this is not quite as negative as that of Aaron Reichlin-Melnick (I don’t think everyone who passes through a third country will be barred), there is no question that, if implemented, these regulations will block many otherwise-eligible applicants from receiving asylum.
With all the bad news, I thought we could use a photo of a funny monkey. Take a moment to enjoy. And then keep fighting.
One last point: These regulations are not yet in effect. There is a 30-day comment period and the regulations would go into effect sometime after that, assuming they are not blocked by a court. In the mean time, you can submit comments here (use reference number “EOIR Docket No. 18-0002”). Apparently, if more people comment, it will help delay the implementation of the rule, so please consider submitting a comment.
(2) Due to a massive budget shortfall, USCIS is set to furlough over 70% of its workforce by the end of July. The agency claims that its financial problems are due to the coronavirus, but most observers (including me) believe that the main reason is the Trump Administration’s anti-immigration policies, which have blocked or discouraged many people from seeking immigration benefits. Since USCIS is 97% funded by user fees, the dramatic drop in applications has left the agency broke. It’s hard to imagine how cases will move forward if so many workers are laid off. This means we can expect even longer delays for work permits, green cards, naturalization, adoptions, work visas, and many other types of immigration benefits. Exactly which services will be effected, we do not yet know, but it appears that USCIS has already suspended processing of most green card applications. Worse, the departure of so many experienced employees will likely result in long-term damage to the agency.
USCIS publicly claimed that it requested $1.2 billion from Congress and that it would pay back the money by increasing user fees by 10% (on top of other proposed fee increases). However, as of last week, “the Trump administration had still not made a formal request for any emergency funding.” One knowledgeable USCIS employee I spoke with believes that the Administration has no intention to request the money or save the agency. She believes that destroying USCIS is part of the Administration’s plan to cripple our immigration system.
You can sign a change.org petition to demand that Congress fund USCIS, so it can continue its mission.
(3) An Office of the Inspector General report revealed that the Executive Office for Immigration Review (“EOIR”), the office that oversees the nation’s Immigration Courts, had substantially mismanaged its budget for FY 2019. The OIG investigation was initiated after EOIR Director James McHenry sent an email inaccurately characterizing the state of the agency’s budget. The report found that “EOIR leadership failed to coordinate effectively with its budget staff,” that the agency failed to anticipate the cost of court interpreters even though it had the necessary information to project those costs, and that “miscommunication across EOIR” led leadership to miscalculate its expenses. The National Association of Immigration Judges (the judges’ union) characterizes the situation at EOIR as follows–
The mismanagement uncovered by OIG in yesterday’s report is only the tip of the iceberg of persistent systemic and structural failures at EOIR. EOIR has failed to implement an electronic filing system, failed to properly hire judge teams as instructed by Congress, failed to secure adequate space to properly run the court and has persistently shuffled immigration judge dockets resulting in the unprecedented backlog of over 1 million immigration court cases.
The judges also reference a recent TRAC Immigration report, which indicates that data released by EOIR about grant rates in Immigration Court is “too unreliable to be meaningful.” TRAC notes that “EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”
(4) Speaking of EOIR, in a court-packing move that would make FDR blush, Director McHenry offered buyouts to nine BIA Board Members appointed prior to the Trump Administration. Though the agency denies it, this was a clear effort to further stack the Board with Members favorable to the Administration’s agenda. Indeed, the move follows an earlier decision to elevate six Immigration Judges with unusually high asylum denial rates to the Board of Immigration Appeals. For more on the politicization of the BIA, check out this posting by Judge Paul Schmidt, a former Chairman of the BIA with first-hand experience of an earlier purge at EOIR.
(5) We have been hearing news on our immigration lawyer list serves about a possible expansion of the non-immigrant visa suspension and an additional attack on asylum seekers. Nothing is known for sure, but it seems the Administration is planning to ban some non-immigrant visas (H-1b, H-2b, L-1, and certain J-1 visas) for a limited period, and to limit OPT for F-1 students. Also, we are hearing about the possible “rescission of employment authorization for asylees, refugees, and TPS holders that would face significant legal hurdles” (the quote is from my list serve; it is not an official announcement, and it is strange, as asylees and refugees are entitled to a work permit under the law). We do not yet know what this means, but my best guess is that the Administration will try to block EADs for asylum applicants (not asylees) who have a one-year bar issue.
(6) While this is not (yet) bad news, we are anticipating a decision in a Supreme Court case where the Trump Administration is attempting to end DACA (Deferred Action for Child Arrivals), the Obama-era program created to protect from deportation certain people who arrived in the U.S. as children. As many as 800,000 people could be effected. Given how the Court has ruled in past immigration cases, I’m not optimistic about the result, but we will have to wait and see. I’ve written about asylum for DACA recipients here, though the new proposed asylum rules would greatly reduce this already difficult option.
(7) Education Secretary Betsy DeVos issued a rule barring colleges from granting coronavirus relief funds to DACA students. While Secretary DeVos claims that she is simply following the law as written by Congress, it seems that the law could have been interpreted to help the DACA students (and a substantial number of Congress people have protested the Secretary’s move). Since the pattern of this Administration is to harm the weak and vulnerable, it’s not surprising that Secretary DeVos interpreted the law in a way to exclude these students. The Secretary’s decision is the subject of a lawsuit, and so we will see what the courts decide.
Oy vey, That is more than enough for now. We can hope that courts will block some of these rules, but we also need to work to prevent a second term for this Administration, which has consistently lied about and attacked non-citizens and other vulnerable people. En la lucha!
Update from 06/17/20
AILA [American Immigration Lawyer Association] has been in contact with USCIS, Hill staff, and reporters to obtain additional information on USCIS’s current guidance for the processing of adjustment of status applications. From what we have surmised, the hold on adjustment of status cases applies to cases that are pre-processed by the National Benefits Center before being sent to local USCIS field offices and specifically the following cases:
“I-485 interviews”; and
“I-485 interview waiver cases not already distributed”.
However, “emergent or sensitive” cases, such as those related to COVID-19, may be referred by officers to leadership to determine if the cases can move forward. It is also important to note that some adjustment cases are adjudicated by SCOPS (including for example, asylum, diversity visa, EB-4, T, U and VAWA cases).
Based on member reports, adjustment of status applications continue to be approved in instances where interviews have been waived. Therefore, the “hold” seems to be in reference to those cases that require in-person interviews before a final decision can be issued.
A hold on adjustment of status interviews could appear to be consistent with the information that USCIS has released concerning its phased reopening of in-person services. Although USCIS began reopening field offices for non-emergency services on June 4, 2020, the agency announced that “offices will reduce the number of appointments and interviews to ensure social distancing.” As local USCIS field offices begin reopening, USCIS has prioritized in-person services for naturalization oath ceremonies and naturalization interviews and continues to handle emergency services. AILA expects that as more social distancing protocols are lifted, USCIS should begin resuming other types of interviews and appointments.
However, given the hold on “interview waiver cases not already distributed” it seems to indicate that USCIS has stopped actively making interview waiver determinations and adjudicating those cases. Based on conflicting reports we have received it is unclear whether this is a temporary pause on interview cases or on all adjustment of status cases at field offices.
Update from 06/18/20
First, the good news – The Supreme Court, in a 5-4 decision, has blocked the Trump Administration from ending DACA, thus (for now) protecting hundreds of thousands of people. The basic reasoning is that the Administration failed to follow the proper procedures needed to end the program. In short, the Administration’s maliciousness was defeated by its incompetence. This is a fantastic decision, and it shows that it is possible to defeat the Administration, even in the Supreme Court.
The other news is that we are receiving more information about the Administration’s plan to block asylum seekers from obtaining a work permit. There is still nothing official, but reports indicate that people who entered the country without inspection or who filed for asylum more than one year after arrival will be blocked from receiving an EAD while their asylum case is pending. Again, this has not been implemented or even officially announced, so we will need to wait for the actual proposal.
Update from 06/19/20
New regulations, which will officially be published next week, basically signal that USCIS will be taking longer to adjudicate EADs for people with pending asylum cases. I will review these after they are published, but it seems unlikely to make a big difference, given how unpredictable processing times already are.
