Donald Trump will take the oath of office on January 20, 2025. Once he assumes power, he has promised wide-ranging changes to our country’s immigration system. These include mass detention and deportation, a return to the “Remain in Mexico” policy, ending parole programs and Temporary Protected Status, and a renewed travel ban (a/k/a the “Muslim ban”).
In the weeks before Mr. Trump takes charge, what should asylum seekers and immigrants be doing to get ready? (more…)
I originally began the Asylumist for several reasons: I wanted to diversify and grow my law practice; I needed an outlet to complain about the asylum system (we lawyers love to complain), and I hoped the blog would serve as a forum to discuss asylum and related issues. After 8+ years, it’s time to take stock.
When I started the Asylumist in 2010, there were already plenty of blogs related to immigration (there still are), but there was no other blog that focused on asylum (there still isn’t, as far as I know). My main interest as an attorney has always been asylum, and so I felt a blog on the subject would be a good way to grow my business in that direction. Back then, I didn’t really know what a blog was. I viewed it as the equivalent of standing on a milk crate in the town square and yelling over and over, “I’m an expert!” Eventually, I figured, people would look at me and say, “That’s the expert.”
In a sense, I was right. To the extent that I am known professionally, people view me as an expert on asylum, and that has helped to diversify my practice. In 2010, the majority of my asylum clients came from Ethiopia, Eritrea, and Afghanistan. These days, my clients come from all over (though perhaps this is more a testament to the sorry state of the world than anything else).
From a purely business perspective, however, I cannot say that the Asylumist has been a great success. First of all, no businessperson with any sense would consider asylum law as a profession. It simply isn’t that lucrative, especially when compared to other legal specialties. And so attracting more asylum clients is not necessarily a path to Easy Street. Also, the amount of time invested in managing a blog, at least my blog, is not even remotely commensurate with the business generated. I’d probably be better off handing out flyers in the subway.
But of course, none of the asylum lawyers I know went into human rights law for the money (except for the terrible ones). We practice asylum law because we believe it helps people. It is interesting. The clients are generally wonderful, intelligent, and accomplished people. Some of us view our work as an extension of our moral or religious values. So while it is not particularly remunerative, there are plenty of rewards for people practicing asylum law.
And in that sense, I think the Asylumist has been successful. It has allowed me to be part of the conversation on asylum. It has also allowed me–and others–to air our complaints about the system. In short, I am lucky to have had the opportunity to work on this blog, and I feel I have gained professionally and personally from the time invested here. I hope it has also been useful to the readers.
With all that said, I just wanted to note some changes that have been made and that are coming. The platform I had been using for the last eight years had become obsolete, and so it was necessary to change the format of the website. I should have made these changes years ago, but I am good at procrastination and bad at change. Anyway, better late than never. Implementing the updates took some time (hence we were down for a few days), but now we are back. We’re not done. There are still kinks to be worked out, and hopefully some bling to be added. The new website should be more user friendly, more accessible to mobile devices, and hopefully more secure.
These days, more than ever, asylum seekers and their supporters need to stand strong. Morality, justice, and history are on our side. I hope to continue to do my part in this great struggle. Thank you for reading and contributing. En la lucha, Jason
This is part 2 of a posting about what happens if the Asylum Office denies your affirmative application. Read part 1 here.
If the Asylum Office denies your asylum case and you are no longer “in status,” you will be referred to an Immigration Court. When you get the denial (which they politely call a Referral), it will contain a short letter with a (usually) boilerplate explanation about why the case was not granted. Along with the letter, you will receive a Notice to Appear (“NTA”), which explains why the U.S. government believes it can deport you. If you have dependent family members, each of them should also receive an NTA (assuming they are all out of status).
The NTA contains allegations and charges. The allegations usually begin, “(1) You are not a citizen or national of the United States; (2) You are a citizen and national of [your country]; (3) You entered the United States on [date and place],” and then they state why you are removable. Often, the alien is removable because she remained in the United States longer than permitted. Other times, the alien entered the U.S. unlawfully (without inspection) or fraudulently (using a fake passport, for example). Some people are removable due to criminal convictions or other immigration violations. Read the NTA and make sure all of the allegations are correct.
The NTA also contains one or more charges. The charges indicate the section of the law (the Immigration and Nationality Act or INA) that the government can use to deport you. One common charge is under INA § 237(a)(1)(B), where the person is removable for having “remained in the United States for a time longer then permitted.” Other charges could relate to an unlawful or fraudulent entry, or to a criminal conviction.
Finally, the NTA will tell you where to go to Immigration Court. Usually, these days, the NTA does not tell you when to go to court. Instead, it says, “TBD,” which means “To Be Determined.” If your court date is TBD, you will receive a notice in the mail with the date of your first hearing. It is important to keep your address updated with the Immigration Court. Use form EOIR-33, and don’t forget to send an extra copy to the DHS Office of the Chief Counsel (the prosecutor).
Also, you can call the Court phone system to check the status of your case and learn whether you have an upcoming hearing. The phone number is 800-898-7180. It is a computer; not a person. Once it answers, follow the instructions and enter your Alien number. After the computer spells your name and you confirm, you can push 1 for your next court date. I recommend you call once a week, just in case you don’t receive the written notice (if you miss your court date, the judge will likely order you deported).
The wait time for the first court date depends on the court and the judge—it could take a few weeks or a few months (or sometimes longer).
Once you are scheduled for court, you will be assigned a judge. The 800-number will tell you the name of your judge. You can learn more about your judge at TRAC Immigration (information is not available for newer judges).
The first hearing is called a Master Calendar Hearing (“MCH”). Many people attend that hearing, and you have to wait your turn. When it is your turn, if you have a lawyer, the Immigration Judge (“IJ”) will take “pleadings.” This is when you (through your attorney) admit or deny the allegations and charges in the NTA. After that, the IJ will usually schedule you for an Individual Hearing (also called a Merits Hearing).
If you do not have an attorney with you at the MCH, the IJ will usually give you a continuance to find an attorney. If that happens, you will be scheduled for another MCH. In generally, the IJs really want you to find a lawyer, as it makes their job easier and it significantly increases the likelihood that your case will be approved.
For most referred asylum applicants, the NTA is correct and the person will admit the allegations, concede the charges of removability, and request asylum, Withholding of Removal, and relief under the United Nations Convention Against Torture. However, in some cases, the NTA is not correct. Also, some applicants can seek other relief, such as Cancellation of Removal or adjustment of status based on a familial relationship (or something else). One job of the attorney is to explore what types of relief you might be eligible for.
Also, at the MCH, the IJ will ask you to designate a country of removal. In other words, the IJ wants to know where to send you if you lose your case. For most asylum applicants, we decline to designate a country of removal. The DHS attorney (the prosecutor) will usually designate the country of citizenship.
If you admit the allegations, concede the charge(s), and indicate what relief you are seeking, the IJ will usually schedule you for an Individual Hearing, which is your trial. If you decline to accept the first Individual Hearing date the IJ offers you, or if you take a continuance to find a lawyer, it could prevent you from obtaining a work permit (if you don’t already have one—if you already have a work permit, you do not need to worry about this). If you think this could be a problem in your case, ask your lawyer. If you do not have a lawyer, ask the IJ.
The wait time between the MCH and the Individual Hearing varies by court and by judge. It might be a few days or weeks (for a detained alien), or it could be several years. Supposedly, for asylum cases referred to Court under the new last-in, first-out system, IJs will be scheduling quick Individual Hearing dates. We’ll have to wait and see how that works out.
The Individual Hearing is your trial. It is where you present evidence, and where you and your witnesses testify. At the end of the Individual Hearing, the IJ will usually make a decision—give you asylum, give you some other type of relief, or order you deported. Sometimes, a case requires more than one Individual Hearing. Other times, the IJ will send the decision by mail.
If lose your Individual Hearing, you can appeal to the Board of Immigration Appeals (“BIA”). If you win your asylum case, DHS can appeal (thankfully, that is not so common). You do not appear in-person for the appeal. Instead, you (or hopefully, your lawyer) will submit a brief, and the BIA will read it and make a decision in your case. Either the BIA will dismiss the appeal, meaning the IJ’s decision was correct and will remain in force, or it can alter or reverse the IJ’s decision. In the latter instance, the case will normally be returned to the IJ to correct the error, and issue a new decision.
An appeal with the BIA typically takes about six months or a year, but it depends on the case.
If you lose at the BIA, you can file a Petition for Review with the appropriate federal appellate court, and if you lose there, you can try to go to the U.S. Supreme Court. Very, very few cases make it that far. Also, if you lose at the BIA, whether or not you go to federal court, you are no longer eligible for a work permit based on a pending asylum case, and you can be deported (typically, ICE will not deport someone with a pending federal case, but they have the legal authority to do so unless the federal court issues an order “staying” removal). For the vast majority of aliens, if you lose at the federal appellate level, that is the end of the line.
In my experience, it is a bit easier to win an asylum case in Immigration Court as compared to the Asylum Office. But it is much more difficult to win at the BIA, and even more difficult to win at the federal appellate level.
So this is the basic process that most cases follow if they are denied at the Asylum Office. There are some exceptions and different paths (most notably Motions to Reopen and/or Reconsider), but the majority of applicants will follow this process. If your case is rejected by the Asylum Office, it becomes even more important to have a lawyer assist you. If you can’t afford a lawyer, check this posting for some helpful resources. And remember, losing at the Asylum Office is frustrating and upsetting, but it is by no means the end of the road. Keep fighting, and hopefully, you will have a good result in the end.
If you are an asylum seeker waiting for your interview, repeat these words: I don’t know. Again: I don’t know. Say them out loud: I don’t know. One more time: I don’t know. These three words may mark the difference between an asylum grant and a denial, but too few asylum seekers ever utter them.
I have previously written about how it is important for lawyers to use these same words, and I might even go as far as saying that if you visit a lawyer and he or she never says “I don’t know,” you might be better off finding a different lawyer. When we do not know or acknowledge the limits of our own ignorance, we risk giving bad advice.
Asylum seekers also need to practice their I-don’t-knows. If you can learn to master these three little words, you might save yourself a whole lot of trouble. Why? Because too many applicants answer questions where (1) They do not understand the question, (2) They do not know the answer, or (3) They do not remember the answer. And if asylum applicants give an answer when, in fact, they do not know, it starts them on a path that could easily end in a denial.
Here’s an example from a recent case I worked on. The asylum applicant’s father was prominent in his country’s government, but the applicant did not know much about his father’s position. The Asylum Officer asked for some details about the father’s job, and the applicant answered. But the applicant really did not know the answer. He just made a series of assumptions based on the limited information he did know. It turns out, the assumptions were wrong, and the applicant’s testimony ended up being inconsistent with the testimony of other family members. Fortunately, we had a good Asylum Officer whose questions brought my client’s assumptions to light, and so I think the applicant’s credibility was not damaged. Nevertheless, had the applicant just said, “I don’t know” instead of assuming, he would have avoided a potential pitfall (and—more importantly from my point of view—he would have saved his attorney a few unwelcome heart palpitations).
Having observed many such interactions, I always advise my clients to say that they do not know or do not remember, if that is the case. But most people don’t fully grasp the importance of only answering when they know the answer. If you guess—about a date or an event—and you are wrong, you risk creating an inconsistency, meaning that your spoken testimony may end up being different from your written statement or evidence, or different from information that the U.S. government already has about you (from your visa application, for example). The Asylum Officer or Immigration Judge may view inconsistencies as an indicator that you are not telling the truth. The theory (flawed, in my opinion) is that people who tell the truth will present consistent testimony in their oral and written statements, and in all the interviews with the U.S. government. The bottom line is this: If your testimony is inconsistent, the adjudicator may view you as a liar and deny your case on this basis.
I get that it is not always easy to say that you don’t know. Most applicants understand that it is important to answer the questions; after all, that is why they are at the interview or in court in the first place. And of course, not answering can create other issues (it is common to hear adjudicators ask, “Why can’t you remember?” to applicants trying to recall relatively obscure events from many years in the past). Plus, in the stressful environment of the Asylum Office or Immigration Court, many applicants feel they need to give an answer, even if they are not sure what the answer is.
Indeed, there are times when saying “I don’t know” can be a real problem for a case. One of my clients was recently asked about his prior political activity. He had no evidence showing his political involvement, and so his testimony took on added importance. In that case, if he were asked about the philosophy of his party or the party’s leadership, the inability to answer might be viewed as evidence that he was not active in the party. Fortunately, in our case, the client knew the basic beliefs of the party and the names of its leaders. He was also able to describe in detail his political activities. His involvement in the party was years ago, but I suspect that if he had told the Judge that he did not remember or did not know, it would have negatively affected his case (maybe it’s a topic for another day, but the fact is, many political activists do not know much about their parties—they have joined because a parent or sibling was a member, or due to ethnic or regional loyalty; the party’s supposed philosophy, its activities, and its leaders are of little concern to them).
It is preferable to know your case and answer the questions that are asked. So review your affidavit and evidence before your hearing. Practice answering questions with your lawyer or with a friend. Try to remember the dates (at least more or less) of events. Know the names of relevant people and places, and about your political party or religion, or whatever forms the basis of your asylum claim. Try to remember all this, but if you can’t, don’t be afraid to say “I don’t know.” As we have seen, not knowing can be a problem. But not knowing and guessing can be a disaster.
A recent case from Florida has raised concern in the asylum-seeker community. On April 26, Marco Coello, a Venezuelan asylum seeker, went to his interview at the Miami Asylum Office. Instead of meeting with an officer to discuss his case, he was detained by Homeland Security officers.
Fortunately, for Mr. Coello, he was released the next day, after various people–including Senator Marco Rubio–intervened on his behalf. An ICE spokesman said that he was detained “because he has a misdemeanor criminal conviction and had stayed in the U.S. longer than his visa allowed.”
I contacted Mr. Coello’s attorney, Elizabeth Blandon, and learned that his conviction was for trespassing (he was originally charged with misdemeanor possession of marijuana). I also learned that the Asylum Office issued a letter on the day of his arrest stating that the case had been sent to the Immigration Court. In fact, Mr. Coello’s case is not with the court, and the issue of jurisdiction (i.e., who will hear his case–an Asylum Officer or an Immigration Judge) is yet to be worked out. Until that happens, his case remains in limbo.
Frankly, it is unclear to me why ICE detained Mr. Coello. His conviction was for a minor violation, which is probably not even a deportable offense. One possibility is that ICE targeted him due to the mistaken belief that he had more than one misdemeanor conviction (trespassing and marijuana possession). Another, more conspiracy-minded, possibility is that ICE arrested Mr. Coello because he was a well-known activist from Venezuela. As the situation in Venezuela has deteriorated, the number of asylum cases from that country has soared. Currently, Venezuelans are filing more affirmative asylum applications than people from any other country. Maybe ICE wanted to send a message in an effort to intimidate potential Venezuelan applicants and stem the tide of cases from that troubled country. Normally, I tend to shy away from such conspiracy theories, but in this case, where the applicant is well-known in his community, I am not so sure.
Mr. Coello’s case is not the only instance of an asylum seeker being detained since President Trump took office, and rumors have been swirling about the new hard-line approach of his Administration. We have heard reports about an HIV-positive Russian asylum seeker, who was detained after visiting the U.S. Virgin Islands and then returning to the mainland (the problem here is probably that a person must go through customs to enter the U.S. from the USVI, and he did not get Advance Parole before leaving and trying to return). He was held for a month before being released. There have also been examples of ICE officials arresting asylum seekers who have been charged with crimes when they appear in criminal court. (And of course, there are the thousands of asylum seekers who arrive via the Mexican border without a visa and who are detained when they request asylum–but this began en masse long before President Trump’s time).
It’s not just asylum seekers who are being detained. Aliens applying for other USCIS benefits have also been arrested. For example, there were five cases where immigrants were notified to appear for USCIS interviews, and were then detained when they arrived at the USCIS office. Apparently, all five had prior deportation orders from Immigration Judges. There’s also the case of a woman who was arrested at a courthouse after filing a protective order against her ex-boyfriend. According to one news source, the woman had an extensive criminal history and had illegally re-entered the United States after being deported.
In addition to all this, there is the now-famous (at least in immigration circles) case from February of a domestic flight from San Francisco to New York where ICE agents checked IDs for everyone disembarking the plane (ICE claims that the searches were “consensual”). Supposedly, ICE was searching for an alien with a criminal record. Turns out, he wasn’t even on the flight.
So what does all this mean? Do asylum seekers risk arrest when they appear for their interview? Or when they show up for a court hearing? Or when they travel domestically? The short answer, at least for now, is no, no, and no.
First, except for the person returning from the USVI, the common denominator in the above cases is that all the aliens had a criminal conviction and/or a deportation order. If you do not have a criminal record or a removal order, there is no reason to believe that ICE will detain you if you appear for an appointment, court date or domestic flight. Indeed, except for the examples above involving criminal convictions and deportation orders, I have not heard about any asylum applicants being detained.
If you do have a criminal conviction (or even an arrest) or a removal order, then there is some risk, but it’s unclear exactly how to assess that risk. How likely is it that a person with a criminal record or removal order will be detained if they appear for an interview? Does the likelihood of detention increase with the severity of the criminal conduct? I do not know, and I am not confident that the few examples discussed above help us evaluate the chance of trouble. But given that there is some risk, it seems worthwhile for anyone with a criminal conviction or a removal order to consult with an attorney before going to an appointment with USCIS.
If I had a conviction or a deportation order, and I was scheduled for an asylum or other USCIS interview, I would want to know a few things from my lawyer. First, I would want to know the likelihood of obtaining the benefit that I have applied for. If my case is very weak and unlikely to succeed, maybe I would be less willing to appear for an interview where I risked detention. Also, I would want to know how seriously the government views my criminal conduct. If the conviction is very minor, I would expect that the likelihood of ICE detention is low (but maybe not, as Mr. Coello’s trespassing conviction illustrates). If the conviction is serious–and many convictions subject an alien to mandatory detention–I would want to know that too. In fact, I would want to know all this before I even apply for asylum or other immigration benefit. Why start the process when it is unlikely I will be able to successfully complete it, especially if applying for the benefit exposes me to possible arrest?
Every person must make his or her own decision, weighing the risk and reward of applying for an immigration benefit. But if you have been arrested or convicted of a crime, or if you already have a deportation order, it would be wise to talk to a lawyer before you file an application or attend an interview with USCIS.
If you want to maximize your chances for winning asylum, where is the best place in the U.S. to apply?
It’s unfortunate that we even need to ask this question. In a perfect world, the approval rates for each Asylum Office would be about the same. But in the real world, approval rates vary–by quite a lot, it turns out.
Our team of mathematicians here at the Asylumist have been working hard to analyze the most recent data from the Asylum Office, and we’ve summarized our findings in the attached chart. You can see that the approval rate for the San Francisco office (76.5%) is significantly higher than for the other Asylum Offices. The next best offices are Arlington (51.8%) and Los Angeles (50.7%), followed by Chicago (38.3%), Miami (37.7%), and Newark (35.8%). The worst offices are Houston (27.6%) and New York (22.6%).
First, a word about methodology: We used monthly statistical information from the Asylum Division Quarterly Stakeholder Meeting to calculate the percentages. USCIS posts this information four times per year, and you can see the latest posting here. We looked at the numbers from the most recently available six month period: April to September 2015. To determine the approval rate, we removed from the mix (technically, from the denominator) asylum denials based on no-shows–in other words, where the applicant herself never attended the interview.
Just for fun, we added another column listing the length of delay before the interview at each office (as of February 2016 – one day, I will do an article about why the posted wait times are not good predictors of how long a new asylum applicant will wait for an interview). You can see that the Asylum Offices with the lowest grant rates (New York and Houston) also currently have the shortest waits for an interview (20 months and 21 months respectively). Perhaps there is a connection between grant rates and waiting periods, but I doubt it–the office with the highest grant rate (San Francisco) has the third shortest waiting time (25 months).
Based on the above analysis, the savvy asylum seeker might conclude that the best way to maximize his chance for a grant is to live within the jurisdiction of the San Francisco Asylum Office, or as a second choice, the Arlington, Virginia or Los Angeles Asylum Offices (to see which Asylum Office has jurisdiction over your case, check the Asylum Office Locator). But I think such a conclusion assumes too much. I also think there are other factors worth considering besides grant rates and wait times. Let me explain.
First, it’s difficult to know what’s behind the above numbers and how applicable they are to an individual case. Who is seeking asylum at each office? From which countries and for what reasons? Are applicants more likely to be represented by a lawyer (which increases the likelihood of a grant) at certain offices? Some types of cases are more difficult to win than others, and this might be reflected in the statistics. For example, supposedly the Houston office has a higher percentage of applicants fleeing persecution from criminal gangs in Central America. In general, such cases are difficult to win since applicants don’t easily fit into a protected category under the asylum law. If we could eliminate Central American cases from the mix, perhaps the Houston office would have a higher grant rate. So does this mean that if you have a different type of asylum case (say, an Iraqi fleeing religious persecution), Houston might not be a bad place to apply? Maybe. At least it probably is not as bad as the overall approval rate suggests.
Second, while USCIS provides limited information about why cases are denied, they do give us some information–most importantly, they provide the number of cases denied due to missed filing deadlines (asylum applicants are required to submit their applications within one year of arrival in the U.S. or meet an exception to this rule; otherwise, the Asylum Office will automatically deny the case and refer it to an Immigration Judge). For some reason, the New York office has a high percentage of “Filing Deadline Referrals.” Roughly 35% of all referrals in NY are due to the filing deadline. In most other offices, less than 20% of cases are referred on this basis. If you remove such cases from the calculus, the overall grant rate in NY goes from 22% to over 30%. So does this mean that more people are filing late in New York, or does it mean that New York is less likely to find an exception to the one-year filing requirement? While I suspect it’s the latter, we really don’t know. But if you are filing your application in a timely manner, the New York office may not be as bad as the chart above indicates.
The bottom line is, we don’t know a whole lot about what’s behind the Asylum Division’s statistics, and without a better understanding of the situation, it is difficult to make predictions in an individual case.
There’s another unknown factor at play here as well: These cases are taking a long time, and given the relatively short tenure of each asylum officer (two or three years, I’ve heard), the approval rate at a given office may change by the time the interview date arrives. So a good office today may be less good tomorrow (or vice versa).
Finally–and for me, this is the best argument against forum shopping–given the years-long waiting period before the interview, asylum seekers have got to live their lives. I often advise new clients that they should live as though they are going to win their cases. Why? Because it’s impossible not to–how can you put your entire life on hold for two, three or more years while you wait for an asylum decision? In some things (reunification with family, certain job opportunities), you may have no choice, but to the extent possible, you need to live your life while you are waiting for a decision. This means you need to live where you have a job or go to school, or where you have the support of family members and friends. If you choose where to live based on the local Asylum Office approval rate, you may have a hard time surviving the wait.
On the other hand, if all else is equal (or maybe if you just have a hankerin’ for some Rice-A-Roni), San Francisco is probably not a bad place to apply.
I periodically complain about the ongoing failure of the Board of Immigration Appeals to provide guidance to Immigration Judges. But the Board’s latest decision makes me think I should be more careful what I wish for.
In Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580 (BIA 2011), the BIA held that, until an arrested alien is formally placed into removal proceedings by service of a Notice to Appear, immigration officers are not required to inform the alien of his right to counsel (at the alien’s own expense) or that his statements might be used against him. Statements made by the alien after the arrest but before the alien is told of his right to counsel may be used against him in immigration court.
Not surprisingly, this decision has been roundly condemned by immigration advocates. The American Immigration Counsel had this to say:
For decades, immigrants placed under arrest have been entitled to these critical advisals. Like “Miranda” warnings for criminal suspects, such notifications help to ensure that statements made during questioning are not the product of coercion. As a result of last week’s ruling, noncitizens under arrest will now be even more vulnerable to pressure from interrogating officers, and immigration judges will face greater difficulty determining whether statements made during questioning were truly voluntary.
Since this decision is bad for all noncitizens, it is–ipso facto–bad for asylum seekers and people with asylum. In some ways, though, this decision might impact asylum seekers more severely than other immigrants.
For one thing, asylum cases often depend on an alien’s credibility. If an alien makes a statement to an immigration officer, that statement might later be used to impeach the alien’s testimony. I’ve seen this happen to some of my clients. They speak to an ICE officer (sometimes through another detained alien acting as an interpreter) and say something that is inaccurate and that might later be construed as an inconsistency. I’m not talking here about lies to gain asylum; I’m talking about non-material points, like whether the alien entered the U.S. in the day time or the night time, or what countries she traveled through to get to the United States. Such inconsistencies are almost certainly honest mistakes, but since non-material inconsistencies can support an adverse credibility finding, such statements can destroy the asylum claim for a legitimate asylum seeker. The E-R-M-F- decision will only exacerbate this problem.
Further, asylum seekers tend to be vulnerable people. Many have been through traumas, often at the hands of officials from their home governments, and they have a particular fear of law enforcement officers. Such people are susceptible to manipulation and will sometimes make false statements in order to please (or placate) an interrogating officer. For these reasons, asylum seekers–more than most–need to be protected when they interact with immigration officers. Again, the Board’s new decision is the exact opposite of what these people need.
My fear is that ICE officers will take advantage of the new ruling to question aliens before they serve the Notice to Appear, and that such statements will be unfairly used to damage asylum seekers’ credibility. My hope is that the Ninth Circuit (which will likely review this matter) will see fit to overturn the Board’s decision.
The Moscow Times reports on a mixed martial arts champion and neo-Nazi who fled Russia and is now seeking asylum in Norway. Vyacheslav Datsik escaped from a psychiatric facility in St. Petersburg and made his way to Norway, where he was arrested on suspicion of violating the country’s law on gun ownership and having possible links to organized crime. Mr. Datsik’s asylum case is pending, but apparently it is becoming more difficult for Russians to obtain asylum in Norway, and given his checkered history, Mr. Datsik might have a difficult time gaining asylum.
In the U.S., I know of two reported neo-Nazi asylum cases in the last couple years. In July 2008, Simon Sheppard and Stephen Whittle were convicted of publishing “race-hate” by the Leeds Crown Court in England. After receiving bail, the two men fled the UK for Los Angeles. On arrival at LAX, immigration officials took the two men–now dubbed the “heretical two”— into custody. The men filed for political asylum in the United States.
The heretical two believe that their government is unjustly curtailing their right to freedom of speech. Indeed, many European governments—in particular Germany—have made neo-Nazi activities and Holocaust denial illegal.
Claims for asylum by European neo-Nazis raise some interesting questions. For one, can a person receive asylum in the United States for hate speech that is illegal in his home country? Such speech would be legal in the United States, but can be punished by jail time in Europe. Arresting people for hate speech certainly satisfies the requirement under U.S. asylum law that a person be targeted “on account of” political opinion. Whether or not the government action against the individual rises to the level of “persecution” might be a more difficult case to make. But recently, an Immigration Judge granted asylum to some German home schoolers who faced “persecution” because they refused to send their children to public school (the DHS appeal of this decision is currently pending). If home schoolers face persecution (i.e., jail) in Germany, then perhaps neo-Nazis in Europe face persecution as well.
Whether European neo-Nazis should receive asylum also raises questions about the purpose of asylum. Our asylum laws, to some extent, reflect our values. We grant asylum to Chinese citizens who face coercive population control measures even though such measures are deemed necessary—even crucial—by the Chinese government. Nevertheless, we have decided that such government intervention into private life is so unacceptable that it is worthy of an asylum grant. Do we think that people arrested for political statements should be granted asylum? Does the imprisonment of such people rise to the level of persecution?
If these individuals can show that their treatment by their home government is persecution, it seems that they should be eligible for asylum. Whether they qualify as a matter of discretion is another matter.
As for the heretical two, their applications for asylum were denied and they declined to appeal. After removal to England, they were each convicted of crimes related to racial hatred. Mr. Sheppard received four years and ten months imprisonment, and Mr. Whittle was sentenced to two years and four months.
The Iowa Press-Citizen reports on a Moscow couple who moved to Iowa, and applied for political asylum in the United States. Irakliy Surguladze and Elena Boryuk came to Iowa with their children in 2007 to escape growing tension in Russia: she is Russian and he is Georgian. Their two countries have had a history of problems, including the deportation of several hundred Georgians from Russia in 2006 and a war in 2008.
Now, the couple is waiting for a hearing in their asylum case, which is scheduled for January 2011 in the Omaha, Nebraska Immigration Court–a court that opened its doors in October 2008 and hears cases from Nebraska and Iowa.
According to an interview with the couple by the Press-Citizen:
Life had been good for the growing family in Moscow, they said. Both having earned advanced college degrees, Surguladze had been working as an engineer, while Boryuk had a good job with an Italian company. He had obtained dual Russian-Georgian citizenship. However, as tensions grew between their native countries, the family began looking for a way out, and in October 2006, they applied for political asylum at the United States Embassy in Moscow.
They learned at the Embassy that they would have to travel to the U.S. to apply for asylum, so they obtained tourist visas and came to the United States.
The Press-Citizen article does not make it clear, but apparently, the couple applied for asylum after they arrived, and their case was referred to an Immigration Judge (either that, or they were somehow placed in removal proceedings and filed a defensive asylum application).
One issue that the couple faces is that Mr. Surguladze has dual Russian-Georgian citizenship. This means that he would need to prove that he cannot return to Russia or Georgia. To get around this problem, perhaps Ms. Boryuk could serve as the lead respondent (it seems she has only Russian citizenship)–if she wins, her husband will receive asylum as her dependent. Of course, this assumes that her case is as strong as her husband’s.
Another problem they might face is proving that they cannot relocate within Russia (it’s a big place). If the IJ finds that they can live safely in some other part of Russia, they may be denied relief. I once represented a Russian human rights worker from North Ossetia, a very troubled region. We faced this same problem, but overcame it when we demonstrated that he could not obtain a propiska–a kind of residence permit–for any other part of Russia.
It sounds like their case might be difficult, and I wish them good luck.
From the New York Times:
The British Supreme Court on Wednesday upheld the right of gay asylum seekers not to be deported if they could show that they faced persecution in their home countries. The court ruled unanimously in favor of two men — a Cameroonian who fled his country after being attacked by an angry mob, and an Iranian who was attacked and expelled from school when his sexuality was discovered — who had lost appeals against deportation in a lower court. The lower court judges had ruled that the men could live “reasonably tolerable” lives in their home countries if they concealed their sexuality. The Supreme Court said that “to compel a homosexual person to pretend” that his sexuality does not exist amounted to denying “his fundamental right to be who he is.”
The coalition Conservative-Liberal Democrat government embraced the ruling, which reversed the policy of the former Labour government.
According to the Guardian, “Stonewall, the lesbian, gay and bisexual charity, said there were 80 UN member countries where consensual homosexual sex was still illegal, including six that imposed the death penalty.” Anti-immigration groups feared that the ruling “could apply to millions of people around the world.” However, (the aptly named) Lord Hope, one of the judges on the panel, stated that the ruling was necessary since anti-gay sentiment had dramatically worsened in some places, fanned by “the rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of sub-Saharan Africa” and “the ultra-conservative interpretation of Islamic law that prevails in Iran.”
Earlier this week, the U.S. Court of Appeals for the Ninth Circuit remanded a case to the BIA to “determine in the first instance whether women in Guatemala constitute a particular social group, and, if so, whether Perdomo [the alien seeking asylum] has demonstrated a fear of persecution ‘on account of’ her membership in such a group.” See Perdomo v. Holder, No. No. 06-71652 (9th Cir. July 12, 2010).
In that case, Lesly Yajayra Perdomo, a native and citizen of Guatemala, sought asylum based on her fear of persecution as a young woman in Guatemala. Specifically, Ms. Perdomo argued that women were murdered in Guatemala at a high rate with impunity. The IJ denied the application because she found that young women in Guatemala were not a cognizable social group. The BIA affirmed, finding that a social group consisting of “all women in Guatemala” is over-broad and “a mere demographic division of the population rather than a particular social group.” Ms. Perdomo entered the U.S. in 1991 when she was 15. In 2003, the government issued a Notice to Appear, and Ms. Perdomo conceded removability and applied for asylum.
The Ninth Circuit noted, “Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA.” The Court further noted, “Our case law examining asylum claims based on membership in a particular social group continues to evolve.” The Court had previously defined “particular social group:”
A “particular social group” is one united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.
The Court had also previously concluded that “females, or young girls of a particular clan, met our definition of a particular social group.” See Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005). In Mohammed, the Ninth Circuit recognized that gender is an “innate characteristic” that is “fundamental to one’s identity.” Id. The Court found that the social group “Guatemalan women” was not necessarily overbroad: “To the extent we have rejected certain social groups as too broad, we have done so where there is no unifying relationship or characteristic to narrow the diverse and disconnected group.” Further, the Court “rejected the notion that a persecuted group may simply represent too large a portion of a population to allow its members to qualify for asylum.” Based on this precedential case law, the Court remanded the matter to the BIA to determine in the first instance whether “Guatemalan women” constitute a social group and, if so, whether Ms. Perdomo has demonstrated a fear of persecution “on account of” her membership in such a group.
Perdomo v. Holder is an important victory for advocates of gender based claims and, according to Karen Musalo, director of the Center for Gender Studies and a professor at Hastings College of Law, this is the first case to reach this high in the United States’ court system, which has grappled with determining gender-based claims for asylum.
This is not the end of the matter for Ms. Perdomo. The case will be remanded for further consideration. She will still need to prove that Guatemalan women are a social group and that her feared persecution is “on account of” her gender. It seems like she also may not be eligible for asylum, since she filed more than one year after her arrival in the United States. Although she still has some obstacles before her, at least the Ninth Circuit has given Ms. Perdomo a chance.
The Department of Justice’s Office of Immigration Litigation (“OIL”)–the office that defends BIA decisions in the federal courts of appeals–recently released data on federal court decisions concerning credibility. Most credibility determinations involve asylum cases, where the decision maker (the Board of Immigration Appeals on appeal and the Immigration Judge in the first instance) must assess the alien’s credibility to determine whether to grant asylum. Under existing law, a decision maker must give a specific, cogent reason for rejecting an alien’s testimony. The REAL ID Act of 2005 tightened these requirements. Among other things, the REAL ID requires corroboration of an alien’s testimony in certain circumstances.
OIL’s Adverse Credibility Project tracks appeals court decisions concerning credibility. OIL describes the data used for the study:
The data… reflects a tally of all decisions in which – regardless of the ultimate outcome of the petition for review – the appellate court has either approved of, or reversed, the adverse credibility holding reached by the immigration judge or Board of Immigration Appeals.
The report found that the “adverse credibility win percentage in 2009 roughly parallels the overall OIL win/loss trends from that year, though the overall numbers are slightly less favorable across the board.” For all federal appeals courts in 2009, 87% of credibility determinations were upheld and 13% were reversed. This represents a small change from 2008, during which 83% of credibility determinations were upheld and 17% were reversed.
The overall numbers mask some diversity between the different circuit courts. In the Second, Fourth, Fifth, and Eleventh Circuits, approximately 96% of credibility determinations were upheld. The Sixth Circuit upheld 100% of EOIR’s credibility determinations (according to OIL, the Sixth Circuit reviewed 58 cases involving credibility determinations; all were upheld). The Third Circuit upheld 74% of credibility determinations, and the Ninth Circuit upheld 73%. In the Eighth Circuit, 86% of credibility determinations were upheld. According to OIL, the other circuit courts–the First, Seventh, and Tenth–heard no cases involving credibility determinations. This seems a bit odd, especially in the Seventh Circuit, which seems to review many BIA decisions.
The circuit courts with the most changes in “win” rates for OIL are the Second and the Ninth:
Reflected in the 2009 statistics is the continued rise in win percentage within the Second Circuit. This percentage has risen steadily, from 14% in 2006 to 54% in 2007 to 90% in 2008 to 96% in 2009. Ninth Circuit win percentage, historically close to 60%, has risen in 2009 to 73%. This increase may be due, in part, to a greater percentage of post-REAL ID cases on the docket in 2009.
The bottom line, I suppose, is that it is difficult–and sometimes almost impossible–to reverse the agency’s credibility determinations. Hopefully, this is a reflection of the BIA’s increased competence at adjudicating aliens’ credibility, and not simply a result of stricter laws concerning federal court review. I guess that is a possibility, but I have my doubts.
I recently came across an interesting article from the Journal of Refugee Studies, “A Rare Examination of Typically Unobservable Factors in US Asylum Decisions,” which analyzes data from 81 asylum cases to determine the “unobservable factors” that influenced the decisions in those cases. The authors had access to cases litigated by the Human Rights Initiative of North Texas (“HRI”) between 1998 and 2005. As the authors explain, the small number of cases and the selection bias in the samples (HRI only takes cases deemed to have a good prospect of success) makes their findings suggestive only. Nevertheless, the study points to some interesting possibilities concerning how decisions are made.
The authors refer to prior studies, which correlate asylum grants with factors other than a “well-founded fear” of persecution, for example, “the judge’s prior work experience (particularly prior INS experience), and legal representation strongly influence asylum outcomes.” Also–
While some legal scholars and human rights activists might expect that human rights conditions and evidence of credible fear of persecution would be the most important factors in the determination of whether to prevent a particular asylum seeker from being returned to a situation that would threaten their life or physical integrity, these empirical studies suggest that outcomes are more likely to be based on economic and security concerns of the state than the merit of the claim.
Unlike most prior studies, the authors here, Linda Camp Keith and Jennifer S. Holmes, had access to the asylum seekers’ files, and could look at many factors–gender, marital status, education level, religion–that are not normally available. Some of the findings are quite surprising, and are examined below:
Gender
The authors write: “we expect that a female will be less likely to receive asylum due to possible cultural biases of the decision makers concerning women as viable threats to government and due to possible cultural differences that affect women’s credibility.” In fact, the authors found that within the cases studied, being female decreased the chances of an asylum grant by a statistically significant amount. Indeed, of all the factors studied (except possibly religion), gender was the most significant “unobservable factor” that determined the outcome in an asylum seeker’s case.
Education
The authors expected that asylum seekers with higher levels of education might be viewed as economic migrants. They found “applicants with a primary or middle school education had greater success than higher educated applicants.” However, they noted that “the sample size is small in the primary and middle categories” (although the results do seem to have some statistical significance). They concluded, “Overall, there does not seem to be much variation in the grant rate due to educational attainment.” People who speak English, however, are statistically more likely to succeed in their cases.
In my own experience, I have always believed that more educated applicants are more likely to win asylum. More educated people are better able to understand the system, they are more likely to articulate their stories consistently (which decision makers rely on to judge credibility), it is easier for well-educated decision makers to relate to them, and they are considered less likely to become a burden on our society. I imagine that these positive factors outweigh any negative perception that well-educated asylum seekers are economic migrants.
Religion
The authors distinguished between asylum seekers with Judeo-Christian religions and those with non-Judeo-Christian religions. They expected that asylum seekers with non-Judeo-Christian religions would be more likely to win asylum. In fact, the authors found that having a non-Judeo-Christian religion was the most influential “unobservable factor” in gaining asylum. Their results in this regard were considered statistically significant.
This is the one observation that seems to me flawed. The authors’ cases come from an NGO in Texas, and so many of their Judeo-Christian asylum seekers likely come from Mexico, Central America, and South America. People from these countries are very unlikely to gain asylum in the U.S. Asylum seekers with non-Judeo-Christian religions, on the other hand, likely come from other regions of the world–regions where it is more likely that they will be granted asylum. For example, many of my cllients are asylum seekers from Ethiopia and most are Christian. They have a very high likelihood of success in their cases (usually based on political persecution). Thus, had the authors used data from an NGO in my area (where we have many Christian asylum seekers), their results concerning religion would likely have been different.
Marital Status
A 2000 study suggested that single people were less likely to gain asylum in the United States, presumably because decision makers view them as likely economic migrants. However, the authors of the current study found that being married significantly decreases the odds of an asylum grant. I’ve never noticed any difference in the grant rates for my married vs. single clients. However, whenever an asylum applicant lists numerous young children on their application, it makes me worry that an adjudicator will be more hesitant to grant, knowing that the grantee’s entire family will be “following to join” him in the United States.
Some Thoughts
As the authors point out, their sample size is small, and the results are only suggestive. Nevertheless, it seems safe to say that “unobservable factors”–or at least factors that are not related to the legal requirements for asylum–do influence decisions in asylum cases. I imagine the same is true in criminal cases and civil cases. Not that this makes the situation any better, but the fact is, such “improper” influences are difficult to eliminate in any type of case. More study is clearly needed. If Immigration Judges and Asylum Officers can be made aware of the biases that influence their decisions, perhaps that will be a first step towards reducing those biases.