What Is the Asylum Division Hiding?

by Jason Dzubow

In an unexpected–but perhaps not surprising–move, the Asylum Division has canceled its Quarterly Engagement Meeting, which had been scheduled for November 14, 2019. This is the meeting where headquarters staff from the Asylum Division give updates and answer questions from stakeholders, such as non-profit organizations and lawyers like me.

Over the years, I’ve attended a number of these Engagement Meetings. They were helpful for several reasons. Most obviously, Asylum Division leaders answered written questions, which had to be submitted in advance, and also allowed us to ask questions and raise issues at the meetings themselves. The meetings provided an opportunity for us to meet Asylum Division leaders and for them to meet us. This type of human-to-human interaction is beneficial to both sides. We were able to see “the bureaucracy” and better understand their concerns, and they could directly hear from their constituents. As I see it, this type of communication and transparency is appropriate in any functioning democracy.

But now things have changed. And while it is disappointing that the Engagement Meeting has been canceled, it is not really surprising. The Trump Administration has been closing avenues of communication between government agencies and various stakeholders for some time. For example, EOIR–the Executive Office for Immigration Review–the office that oversees that nation’s Immigration Courts, has dramatically reduced the ability of its employees to communicate with people outside the agency. In my interview with the former Chief Immigration Judge, she notes that, “This change was touted as a way to streamline the Agency’s messaging system, but cutting off… communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.” EOIR is also refusing to release data about its operations–data that was routinely made public in the past, and which helped us better understand how the system was operating. In addition, EOIR, DHS, and the Asylum Division have all been blocking their employees from speaking publicly, even to law students and at professional conferences. All this is harmful to students and professionals, who benefit from contact with public servants, but it is detrimental to the agencies as well, since they cannot hear directly from the people they serve or explain themselves to the advocacy community. Worse, their ability to recruit talented employees is hampered if they cannot communicate directly with people outside the government.

A live view of the Asylum Division meeting not taking place.

So as you can see, the Asylum Division’s decision to cancel the Engagement Meeting fits a wider pattern, but there may be other reasons behind the cancellation as well. The most obvious is a recent change in leadership. The long-time Director of the Asylum Division, John Lafferty, who normally chaired the Engagement Meetings, was forced out a few months ago. I met Mr. Lafferty several times, and I had (and still have) a high opinion of him: He tried to follow the law in the face of the Trump Administration’s assault on due process. Some lawyers I know felt he bent too far towards accommodating the Administration’s policies, but I saw him walking a difficult line and doing his duty to his superiors and to the law. He managed to keep the Asylum Division operating (more or less) despite the Administration’s machinations against it. According to news reports, Mr. Lafferty’s removal has further damaged morale at his agency–

The reassignment of John Lafferty… has caused consternation and fear among asylum officers and other USCIS officials, who worry that the administration is dead set on pushing forward with policies that may not always be legal or adequately researched…. “This is shocking and distressing news for the civil servants in the Asylum Division,” said [an unnamed] USCIS official. “A very sad day where an incredibly sophisticated, highly dedicated, and ethical leader is being removed from an important position in the agency.”

The new Director of the Asylum Division is Andrew Davidson, the former deputy associate director for USCIS’s Fraud Detection and National Security Directorate, the department that leads the agency’s “efforts to combat fraud, detect national security and public safety threats, and maximize law enforcement and Intelligence Community partnerships.” It seems likely that the choice of Mr. Davidson reflects the Trump Administration’s view that asylum claims are largely fraudulent, and so we will have to see where the Asylum Division goes under his leadership.

As the new Director, Mr. Davidson is in a position to continue or cancel the practice of holding Quarterly Engagement Meetings. The fact that the November 14th meeting–which would have been the first of his tenure–has been canceled, does not bode well. But perhaps since he is new to his role, he was not yet ready to engage with stakeholders, and meetings will resume once he settles in. Perhaps.

I myself was looking forward to the Engagement Meeting because I was hoping to hear answers to questions I submitted about how each Asylum Office was addressing its backlog. Whether USCIS will ever provide answers to these questions, I do not know. I reached out to them after I learned that the meeting was canceled, but I have not yet received a response.

I certainly hope the Asylum Division will resume the practice of holding public meetings. Whatever your feelings about asylum seekers and the asylum system, when government agencies close off avenues of communication and hide behind bureaucracy, it is bad for our democracy. It also begs the question: If the Asylum Division is so intent on cutting communication with us, what is it that they are trying to hide? 

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USCIS – The (Mostly Awful) Year in Review

by Jason Dzubow

Earlier this month, United States Citizenship and Immigration Service (“USCIS”) issued a news release touting its accomplishments for FY 2019, which ended on September 30, 2019 (a belated Happy FY 2020 to all!). According to the agency, “FY 2019 has been a historic year for USCIS and we have achieved many of President Trump’s goals to make our immigration system work better for America.” Here, we’ll take a look at some of USCIS’s “accomplishments” and explore what that means for asylum seekers.

First, I can’t help but note the hostility towards Congress and towards asylum seekers expressed in the news release and by Acting USCIS Director Ken Cuccinelli. Here are a couple quotes—

In the face of congressional inaction, we’ve taken significant steps to mitigate the loopholes in our asylum system, combat fraudulent claims and strengthen the protections we have in place to preserve humanitarian assistance for those truly in need of it.

Absent congressional action to provide targeted fixes to our immigration system, USCIS rushed personnel and resources to our southern border and implemented a number of significant policy changes and reforms designed to help reduce the loopholes in our nation’s asylum system that allowed for crisis levels of abuse and exploitation.

USCIS is correct that Congress has failed to pass comprehensive (or partial) immigration reform, which has been sorely needed for years. However, to blame only Congress, without considering the erratic leadership (or lack thereof) from the Executive Branch looks like a case of the pot calling the kettle black. Also, USCIS again points to “loopholes” and “crisis levels of abuse and exploitation” without specifying what that means. Clearly, the Acting Director wants to deter asylum seekers from coming here, but that is a separate question from whether asylum seekers themselves are exploiting loopholes or abusing the system. 

In anticipation of more e-filing, USCIS has added extra hard drives to its computer.

USCIS points to two major policy reforms for FY 2019. The first is the Migrant Protection Protocols (“MPP”), which were designed to stop asylum seekers from “attempting to game the immigration system.” Again, evidence that anyone is “gaming the system” is lacking. “Under MPP, aliens attempting to enter the U.S. from Mexico without proper documentation may be returned to Mexico to wait outside of the U.S. during their immigration proceedings.” Sadly, the MPP has done real damage to our asylum system and to our nation’s moral standing. The program has forced thousands of people to wait in tents in Mexico, where they are subject to violence and extortion at the hands of cartels, which have a powerful presence near the border. Also under the MPP, asylum seekers are routinely and blatantly denied due process of law.

The other major policy reform is the Third Country Transit Asylum Rule, which is designed to–

enhance the integrity of the asylum process by placing further restrictions or limitations on eligibility for aliens who seek asylum in the United States. Specifically, with limited exceptions, the rule bars aliens, who entered along the southern border, from receiving asylum in the U.S. if they did not apply for asylum in at least one other country they transited through. This rule aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.

Like the MPP, this rule degrades (and arguably violates) our asylum system by forcing asylum seekers who arrive at the Southern border to file for asylum in a country that they pass through on the way to the U.S. This might be fine if the countries in question were safe and had operating asylum systems of their own, but for the most part, they aren’t and they don’t. What I find most offensive about this pronouncement, though, is the last part–the claim that the policy “aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.” It does no such thing. Instead, the rule arbitrary seeks to block all asylum seekers by forcing them to seek protection in third countries. There is no effort to distinguish legitimate asylum seekers from those who are somehow not legitimate (whatever that means). Why USCIS can’t simply say this, and be honest about their goal of making asylum more difficult for everyone, I do not know.

The news release also gives us some statistics. “In FY 2019, the Asylum Division received more than 105,000 credible fear cases – over 5,000 more than in FY 2018 and a new record high.” A credible fear interview or CFI is an initial evaluation of asylum eligibility. People who arrive at a border or an airport and request asylum receive a CFI. If they “pass,” they are referred to an Immigration Judge for a full asylum hearing. If they “fail,” they are removed from the U.S. The fact that USCIS performed a record number of CFIs signals that the government’s deterrent efforts are not working. If people were being deterred from coming to the U.S. for asylum, we should see lower numbers of CFIs.

Another statistic relates to hiring– 

In FY 2019, USCIS executed an ambitious plan to hire 500 staff for the Asylum Division by the end of December 2019 to reach authorized staffing levels. New strategies are in development to more specifically target individuals with relevant experience and skill sets, including those with prior military and law enforcement expertise.

The Asylum Division has been “staffing up” for probably half a dozen years, and whether they expect to actually achieve their goal this time, they do not say. If so, this could help reduce the asylum backlog, which would be good news. On the other hand, the idea that they are recruiting people with “law enforcement expertise” rather than human rights experience, points to the type of candidate they may be seeking.

Also in FY 2019, the “Asylum Division trained and deployed U.S. Border Patrol agents and USCIS officers from outside the Asylum Division to supplement staffing on the southern border and assist with the Asylum Division’s workload.” Whether Border Patrol agents and USCIS officers have the training necessary to properly do Asylum Division work is an open question, and is an issue of concern for advocates. I personally have my doubts. But on the positive side, I suppose it will free up “real” Asylum Officers to do more affirmative cases.

Finally, the news release discusses some plans for FY 2020. One point of interest for asylum seekers is that USCIS plans to continue the transition to on-line filing, and will make it possible to e-file the I-589 asylum form. If done properly, this would be a great benefit to asylum seekers, since it would make filing easier and more reliable, and would hopefully avoid the problem of USCIS losing documents, which has been a big issue in the past. Given all the bad news from USCIS, let’s end here, with happy thoughts of e-filing in FY 2020. 

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To Dream the InfoPass-able Dream

by Jason Dzubow

Last week, I attended a meeting about InfoPass for the Asylum Offices. InfoPass is an online system that allows you to make an in-person appointment about your immigration case. It has been in use by USCIS for about 15 years, and now the Asylum Offices are debuting their own version of the scheduling tool. The system is operational in my local office (Arlington, Virginia), but it is not yet available nationwide. Here, I want to talk about why the Asylum Offices are implementing InfoPass and what it will do. I also want to offer some constructive criticism (or, as we say in Yiddish, I want to kvetch).

There seems to be a couple main reasons why the Asylum Offices are adopting InfoPass. First, they want to be better prepared when people show up for an inquiry. With the current walk-in system, the Asylum Office (“AO”) does not know who is coming in or why, and so they cannot prepare in advance for the meeting. InfoPass will give the AO a heads-up, which will (theoretically) allow them to pull the file, and possibly have an answer when the person arrives. Second, InfoPass will reduce the likelihood that the AO will lose documents (a problem at my local office) because they will have the file available when the new documents arrive. Third, the new system will help manage the flow of visitors to the office and reduce wait times. The overall goal is to provide better, more efficient service.

“Well, at least we can make the whole ‘sinking thing’ a bit less unpleasant.”

So what can you do with InfoPass? Once you reach the InfoPass appointment page (and remember, this link is only for the Arlington office), you will see that there are about a dozen different options, from changing your address to changing your lawyer, delivering documents, inquiring about an interview or a decision, asking about the asylum clock or missing receipts, and withdrawing the case. There is also an “other” option for nonconformists. Depending on the reason for the visit, appointment availabilities and the time allotted for your visit will vary. So if you are dropping off documents, you will receive a shorter time slot than if you are inquiring about a delayed decision. If all goes well, when you arrive at your appointment, you will be received by a person who has reviewed your file, and is ready to help you.

Before we turn to the constructive criticism/kvetching, it is important to acknowledge that the Asylum Office is trying to make things better, and they should be commended for that. For me, one take away from the meeting last week is that creating an Asylum Office InfoPass system is really hard. Not only are they building something new and integrating it with existing systems, which is technologically challenging, but they also have to account for the human factor–desperate people trying desperately to talk to a human being. It ain’t easy.

The AO’s efforts are laudable, but I have some concerns about the system as it is currently envisioned.

The first problem is that people who are seeking USCIS InfoPass appointments–as opposed to Asylum Office InfoPass appointments–are filling appointment slots at the AO. During the first day of testing, something like 40 appointments were filled up almost as soon as the system went live. All but one were taken by people who were not asylum seekers, and who were actually seeking appointments with USCIS. The problem is that “regular” InfoPass appointments are almost impossible to get, and so these non-asylum seekers migrated from the regular InfoPass webpage to the AO InfoPass webpage. It doesn’t help that links to both types of InfoPass appointments appear on the same USCIS webpage.

The obvious solution is to limit AO InfoPass appointments to asylum seekers. However, as I understand it, there are technical issues that make it difficult to implement such a system, and so the AO is stuck manually going over the appointment requests to determine whether they are actually for asylum seekers. This seems untenable, and I suspect some technological fix will eventually become necessary. Maybe an interim solution is to put a link to the AO InfoPass webpage on the Asylum Office website, as opposed to the USCIS website. At least that would reduce the likelihood that “regular” InfoPass people would sign up for an AO InfoPass.

Another problem–and this is more for lawyers than for asylum seekers–is that we now need an InfoPass appointment to file documents. While I understand why the AO is requiring this (so they can pull the file in advance and insert the new evidence), it will be a hardship for lawyers. Most cases require the submission of additional documents before the interview. The problem is, we only get about three weeks notice before an interview, and (at least in Arlington) all evidence must be submitted one week prior to the interview. Thus, once we get notice of the interview, we have precious little time to complete the case. Adding a further constraint–such as the need for an appointment to file documents–is going to be very challenging. We often don’t know when the evidence packet will be ready, and so it is difficult to know when to schedule an appointment. Also, it is easier for repeat players, like lawyers, to file documents when they are going to the AO for some other reason. If we have to make extra trips to file documents, we may need to pass the expense on to our clients. This will make it more difficult for asylum seekers to afford legal help.

I expect that most lawyers would rather file documents by mail than make an InfoPass appointment. The problem is that evidence filed this way is more likely to get lost, which could result in the interview being rescheduled.

A third problem is that appointment slots are limited, and I fear that many will be filled by asylum seekers who repeatedly appear at the AO to inquire about their cases. While I understand that people are anxious and want to talk to a human being, without some limitation on the frequency that asylum seekers can appear at the AO, others who need appointments may not be able to get them. One (partial) solution here might be to identify questions that are amenable to telephonic or email responses, and then to contact the person prior to the appointment. The AO is hoping to implement such a system, but probably not anytime soon.

To me, the basic issue is that we need knowable, enforceable rules about InfoPass and about the asylum system in general. I’ve written previously about how the AO could make its webpage more useful. If people were more well-informed, they would have less need for InfoPass.

Based on the meeting last week, I think the AO is aware of these (and other) issues. They are open about the fact that the new InfoPass system is a work in progress, and that it will evolve as they learn more about how it is being used and what people need. While I can’t say I am thrilled about the new document filing system, InfoPass for asylum seekers is otherwise a positive development. Hopefully, the AO will continue to upgrade their systems and respond to the needs of stakeholders. If so, I expect they will improve efficiency and help ease the pain for those who are waiting.

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You Can Now Check Your Asylum Case Status Online!

by Jason Dzubow

Last week, I wrote about my suggestions for a new Asylum Office website. In that post, I gave short shrift to a new development: For affirmative asylum applicants, it is now possible to check your asylum case online at the USCIS website. This development is actually pretty significant, and will be particularly helpful for those who set up an account with USCIS in order to receive automatic case updates.

Here’s how it works: If you filed affirmatively for asylum–meaning, you filed a case with the Asylum Office–you should have received a receipt with an Alien number (a nine-digit number usually starting with 0 or 2) and a receipt number (three letters followed by a 10-digit number; the first letter is “Z”). You can now enter the receipt number into the USCIS Check Case Status web page and obtain information about your case.

I’ve plugged in several of my clients’ receipt numbers to get an idea of how the system works. After you enter the receipt number, you will receive a message about your case. The messages I saw have between one and four paragraphs, depending on the stage of the case.

The USCIS computer team celebrates as their agency enters the 20th Century.

The first paragraph gives information about the status of the case. This is discussed more below.

The second and third paragraphs of the message discuss the “Asylum Clock” and eligibility for an employment authorization document or EAD. In short, once an asylum case is received, the “Clock” starts. After the Clock reaches 150 days, a person may apply for an EAD, but the Clock must reach 180 days in order for USCIS to actually issue the EAD. If a person delays her case (by skipping an appointment, for example), it could cause the Clock to stop. Buried in the middle of the second paragraph is the number of days that have elapsed on your Asylum Clock and a statement about whether your Clock is still running. This is quite helpful, as it is easy to know when to apply for your EAD (on or after day 150, assuming the Clock is still running). One quibble, if I may: It would be nice to see this information more prominently displayed, as it is kind-of hidden in an otherwise boilerplate paragraph.

The final paragraph contains information about what to do if you move (file form AR-11).

There are different messages generated, depending on the status of the case. After the case is filed and received, the message reads, “The next step in your application is an in-person interview. Once your interview is scheduled, you will receive an interview notice in the mail and this case status will change. If you have an attorney or accredited representative on file, this individual will also receive a copy of the interview notice in the mail.” Another quibble: This message appears even if the biometrics (fingerprint and photo) appointment letter has been mailed out. In other words, at least for the case I checked, the system does not indicate that a biometrics letter was sent. Hopefully, USCIS will include this information as it continues to update the online system.

Once the interview is scheduled, the message states, “Your interview has been scheduled. You will receive an interview notice at the mailing address we have on file. If you have listed family members as dependents on your application, you must bring them to your interview. If you cannot communicate effectively in English, you must bring an interpreter. If you have an attorney or accredited representative and come without that representative, we will ask you to sign a form stating you agree to be interviewed without that representative present.” Further down the page, the message indicates that you can reschedule the interview. However, there is no information about how to contact the Asylum Office to reschedule. Such information would be helpful, even if it is only a link to the (woefully inadequate) Asylum Office website (which also does not tell you how to reschedule an appointment). By the way, it seems that the interview message is the same whether it is a first interview or a rescheduled interview.

If the interview has taken place, but there is not yet a decision, the message states, “You completed your interview with USCIS. The time it takes for USCIS to give you a decision after completion of an interview may vary. An officer told you at the end of your interview if you needed to return to the office to pick-up your decision on a specific/scheduled date, or if your decision would be mailed to you.” This same message seems to appear regardless of how long the decision has been pending. For example, I checked one of my long-delayed cases (filed over five years ago!). I suspect that the case is being held up due to a TRIG (Terrorism Related Inadmissibility Grounds) bar–the client was kidnapped and paid money to the bad guys to get released (this is an example of how the TRIG bar treats the victims of terrorism as if they were terrorists). The client was interviewed (about four years ago), but there is still no decision. For this client, I received the same Case Status message as for a client who was interviewed three months ago (and who does not have any TRIG issues).

Once a decision has been made, the message reads, “We reached a decision in your case. You should expect to receive the decision in the mail shortly. You must follow the instructions in your decision letter as to what you should do next.” If the decision was picked up, the message reads, “We reached a decision in your application. You recently picked up this decision at our office. You must follow the instructions in your decision letter as to what you should do next.” Whether the case was granted, denied or referred to Immigration Court, the message was basically the same. In other words, you cannot determine the outcome of the case based on the online message.

I did not have any cases with a pending Notice of Intent to Deny, so I do not know if the online system indicates whether such a letter has been mailed out. I hope it does, as applicant’s only have 16 days to respond to a NOID, so the earlier they know about it, the better.

I also checked an application that was closed. The message states, “We closed your application and notified you of the reason in the decision letter we mailed to the address we have on file for you. You must contact the office that has been handling your application if you believe your application should not have been closed.” Such a message means that the case is no longer with the Asylum Office. In our client’s case, the person had previously been before an Immigration Judge, and the Asylum Office determined that it did not have jurisdiction.

Probably the best part about the new system is that you can set up an account with USCIS so that you receive automatic updates by email or text message. In this way, you will know when to expect your interview notice or decision. And here’s a bonus: If you sign up for Informed Delivery with the U.S. Post Office, you will get a scan of all mail coming to your house, so you will know exactly when your notifications (and all your other mail) are arriving. Informed Delivery is not available everywhere, but you can check the USPS website to see whether you are eligible.

Finally, one last issue: The USCIS website is only in English. There are a limited number of messages that appear when you check your receipt, and so it really shouldn’t be that burdensome to create messages in other languages (Spanish being the most obvious). I am not sure that this is under consideration, but it would be very helpful.

So that’s about it. The new system is a good start, especially if you get automatic updates, but it’s not a substitute for a more informative Asylum Office website, as I discussed last week. Hopefully, USCIS will continue to improve it’s online presence, and continue to improve the process for asylum seekers and everyone else in the system.

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Ten Things I Hate About You-SCIS

by Jason Dzubow

Lee Francis Cissna, the Director of USCIS, is building an “invisible wall” to compliment his boss’s “big beautiful wall” along the U.S./Mexico border. The “invisible wall” consists of bureaucratic barriers to prevent people from obtaining immigration benefits in the United States. Ostensibly, the plan is to make America more secure and to protect our country’s workforce. From my perspective, though, much of it seems like gratuitous cruelty, which especially impacts families who don’t have the resources to hire a lawyer.

The bureaucratic changes at USCIS also impact attorneys, increasing our work load and our stress level. It’s now harder to advise our clients, since many USCIS decisions seem arbitrary. While cases are mostly still successful, the environment is decidedly less pleasant. And so without further ado, here are the top ten things I hate about the “new” USCIS:

(1) Asylum Seekers Must Report Arrests on the I-765 Form: The new I-765, a form used to request an employment authorization document (“EAD”), requires that asylum seekers–and only asylum seekers–indicate whether they have ever been arrested. Other EAD applicants, such as people waiting for a green card based on a family or work petition, are not required to report prior arrests. Why are asylum seekers so special? I have no idea, but it’s clear that the current Administration is no fan of asylum, and so perhaps this is another way to punish those who have the temerity to ask our country for protection. What’s wrong with asking about prior arrests? Aside from the arbitrary decision to single out asylum seekers for this additional burden, there are a couple issues: First, many asylum seekers have been arrested back home for their political opinion or religion (hence, they are seeking asylum). USCIS wants documents on all arrests, but it is often impossible to obtain documents for these “illegal” arrests, and this could potentially result in a denied EAD application. Another issue is delay. It takes extra time to process applications if there is more to review. We can expect this new requirement to slow down cases where the person has a prior arrest, and since extra resources will be devoted to such cases, we can expect a ripple effect for all EAD applicants. Finally, the new requirement might necessitate some EAD applicants to hire lawyers, which can be burdensome. And for those with lawyers, the extra work might result in higher fees. At its heart, this is an access to justice issue: In many cases, you receive the justice you can afford, and that is not fair.

A French immigrant is blocked by the invisible wall (and frankly, in this case, I’m good with that).

(2)  Delayed Work Permits After an Asylum Grant: I am not sure how widespread this problem is, but we’ve seen a number of examples lately where a person is granted asylum, and then waits months to receive her new EAD. The delay makes it more difficult to get or keep a job, and it can also block people from receiving a driver’s license.

(3) Disappearing Cases at the Texas Service Center: Most of our office’s affirmative asylum cases are filed at the Texas Service Center (“TSC”). But sometimes, cases are received at the TSC, and then vanish, like dignity from the Oval Office. This happens if the applicant had a prior asylum application, which we did not know about (sometimes, an applicant was a dependent on a prior case and did not know about the case), and it can also happen if we accidentally send an application to the TSC when it should have been sent to a different service center. Why the TSC can’t simply inform us about these errors, or just reject the application, I do not know (though there is an email to contact the TSC, and they recently assisted in one of our cases – Thank you, TSC!).

(4) Rejected Cases at the TSC: The TSC is also notorious for rejecting cases for small, insignificant errors. We once had a case rejected because we did not list the applicant’s siblings. He had no siblings (now, we make sure to write “n/a” in any empty boxes on the I-589). We’ve had instances where we forgot to check a box, and the application was rejected and returned to us. Now-a-days, we triple check the applications in the hope of avoiding such issues, but I imagine for pro se applicants, this is more frequently a problem. The shame of it is, most of these small errors could be resolved at the asylum interview; there is no reason to reject the entire case, causing additional delay and stress.

(5) Refusal to Accept Birth Certificates: Lately, we’ve seen examples of USCIS refusing to accept birth certificates that were not created at the time the person was born (we have not seen this problem for asylum cases, but we have seen it for asylees who are filing for a green card). It is common practice in many countries, that when you need a birth certificate, you request it from the local office. They look it up in a registry, and issue a birth certificate. This used to satisfy USCIS, but no longer. Now they want hospital records, letters from people who knew you when you were born, old school records, and lots of other difficult-to-obtain information about your birth. For me, the best evidence that a person was born is that the person currently exists. Shouldn’t that be enough?

(6) Denial of Advance Parole for Asylum Seekers: To get Advance Parole (“AP”) as an asylum seeker, you must show a “humanitarian” need for the travel. In the past, this was basically a formality. But now, all sorts of evidence seems necessary to obtain AP. In one of our recent cases, the client was seeking AP to visit her mother, who was ill. We submitted a doctor’s letter about the mother’s condition, but USCIS denied AP because the mother was not sick enough (the doctor’s letter indicated that the mother’s condition was “stable”). What was the purpose in blocking our client from visiting her sick mother? To me, this is simply another way to punish people seeking asylum in our country.

(7) Limitations on Advance Parole for Asylum Seekers: We have also seen examples of USCIS issuing AP for very limited periods of time. In one case, we received the approval, but AP was only valid for two days, thus making travel impossible. We try to avoid this outcome by requesting multiple trips, and timing the trips so that USCIS issues the document for a longer period, but what is the harm in issuing AP for one year (or longer)? Why make travel difficult for people who are already enduring difficult circumstances?

(8) The Four-Page Form G-28: Maybe this is a quibble, but why does it take four pieces of paper to enter my appearance as a lawyer using form G-28? All USCIS should need is my name and contact information, the client’s name and information, and space for some signatures. The form used to be two pages, which already seemed too long. Now, every time we enter our appearance, we have to waste four pieces of paper. The G-28 is just one example of USCIS form proliferation. The I-485 went from six pages to 18 pages. The I-130 went from two pages to 12 pages plus another six-page form for marriage cases. The Lorax would not be pleased. Neither am I. Also, of course, longer forms increase costs.

(9) Less Requests for Evidence, More Denials: A new USCIS policy memo makes it easier for the agency to deny cases, instead of issuing requests for evidence (“RFE”). Aliens are paying big bucks for a lot of their applications, and previously, if the applicant made a mistake, USCIS would issue an RFE to allow the person to correct her application. Now, USCIS will deny some such cases. As a result, some aliens will hire lawyers (and endure additional expenses that should have been unnecessary); others may have their cases denied, thus losing their fees and potentially jeopardizing their ability to remain in the U.S.

(10) Slower and More Unpredictable Processing Times: All the changes at USCIS have inevitably affected processing times. Applicants often want to know how long their cases will take, and how long they will have to wait to be reunited with loved ones. These days, processing times have become longer for most applications. Also, processing times have become more unpredictable. For example, if you are applying for a green card in Baltimore, Maryland, the processing time is between 11.5 and 27 months. That’s pretty long, and pretty unpredictable. It’s hard to plan your life in the face of such uncertainty.

I could go on, but I am sure you get the point. USCIS’s “invisible wall” is having its desired effect: It is making it more expensive and more difficult for people to come to the United States. People with fewer resources will suffer the most (as usual), but everyone is affected. Cases are still being approved, but these days, applicants need to be prepared for a more difficult journey to reach their goal.

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The Perils and Pitfalls of Applying for a Green Card

by Jason Dzubow

In the past few weeks, we’ve had two former asylum clients return to our office for help after USCIS denied their applications for citizenship. The applications were denied due to mistakes the former clients made on their I-485 forms (the application for a green card). These cases illustrate the danger of incorrectly completing the I-485 form, and this danger is particularly acute for people with asylum.

The new Green Card application process.

Let’s start with a bit of background. After a person receives asylum, she must wait for one year before applying for her lawful permanent resident (“LPR”) status (her green card). The form used to apply for the green card is the I-485. In the good old days (a few months ago), this form used to be six pages. Now it is 18 pages. The old I-485 form contained 32 yes-or-no questions; the new form contains 92 such questions.

Many of these questions are difficult for me to understand, and I am a trained lawyer who speaks reasonably decent English. So you can imagine that people with more limited English, who are not familiar with the complicated terms and concepts contained in some of the questions, might have trouble answering.

In my clients’ cases, two questions in particular caused them trouble (these are from the old I-485). The first question was, “List your present and past membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place since your 16th birthday.” Both clients had been involved with political parties, but were no longer members of those parties in the United States. The clients did not carefully read the question, and instead of listing their “past membership,” they instead answered “none” (because they are no longer members).

The second question asked whether the clients had ever been “arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations.” In fact, my clients had never been arrested for “breaking or violating any law or ordinance.” They were arrested for exercising their supposedly-lawful political rights, and they were correct to answer “no” to this question. Nevertheless, USCIS viewed their answers as deceptive.

My clients’ problems were compounded by the fact that they were never interviewed for their green cards, and so a USCIS officer never went over the questions with them and gave them an opportunity to correct the errors.

The result of all this—confusing questions, carelessness, and no interview—was that my clients obtained their green cards, but also sowed the seeds for future problems. Five years later, these problems appeared when the clients tried to naturalize, and USCIS went back and carefully reviewed their prior applications.

To me, my clients’ errors were clearly honest mistakes. Indeed, in their asylum applications, the clients had already informed USCIS about their party memberships and about their arrests, and so they had nothing to gain—and everything to lose—by failing to mention these issues in the I-485 form. But that is not how USCIS sees things. To them, the errors were “misrepresentations,” which disqualified my clients for citizenship.

To solve the problem, my clients will likely need to apply for waivers (an expensive application to seek forgiveness for making misrepresentations). Given that they are asylees, and that the misrepresentations were relatively minor, I suspect the clients will ultimately qualify for waivers and—eventually—become U.S. citizens. But between now and then, they will face a lot of unnecessary stress and expense. Unfortunately, this is the reality now-a-days for all applicants: If you leave yourself vulnerable, USCIS will bite you.

So what can be done? How can you protect yourself when completing the form I-485?

The key is to read each question carefully and make sure you understand what it means. This is time consuming and boring, but given that USCIS is looking for excuses to deny cases and cause trouble, you have little choice if you want to be safe.

Even using a lawyer is no guarantee. Until recently (when USCIS started looking for reasons to deny cases), I had a tendency to gloss over some of these questions. I am more careful now, but it’s not easy. Many of the questions are ridiculous: Are you a prostitute? Did you gamble illegally? Were you a Nazi in WWII? But intermingled with these questions are others that require closer attention: Did you ever have a J visa? Have you ever received public assistance? Have you ever been denied a visa? It’s easy to skim over these, but the consequences of an erroneous answer can be serious.

Also, some questions are tricky, and can’t easily be answered with a “yes” or a “no.” For example, my clients indicated that they had not been arrested for a crime, and this was correct, but they had been arrested for their (lawful) political activities, and USCIS took their answers as misrepresentations. What to do? When we complete I-485 forms and we encounter questions like this, we normally check “no” (or “yes” if that seems more appropriate) and circle the question. Next to the question, we write, “Please see cover letter,” and on the cover letter, we provide an explanation (“I was never arrested for a crime, but I was arrested by my home government for political reasons”). At least this avoids the problem of USCIS labeling your answer a misrepresentation.

In the end, the only real solution here is to read each question carefully, make sure you understand the question, and answer it appropriately. If the question is not amenable to a yes-or-no answer, or if you think an explanation is required, circle the question and provide an explanation. If you don’t understand something or are not sure, ask for help. It’s best to get the form correct now, even if that involves extra time or money, than to make mistakes that will cost you later on.

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New Rule Spells Potential Trouble for Asylees

by Jason Dzubow

There’s a new State Department rule in town about misrepresentation, and it could signal trouble for certain asylum seekers and others who enter the country on non-immigrant visas and then seek to remain here permanently or engage in other behavior inconsistent with their visas.

The State Department has a long tradition of blocking visas for people facing persecution (if you don’t believe me, Google “Breckinridge Long”).

To understand the problem, we first need to talk a bit about non-immigrant visas (“NIV”). To obtain an NIV, you have to promise to comply with the terms of that visa. One common NIV requirement is that you must intend to leave the U.S. at the end of your period of authorized stay (some NIVs are exempt from this requirement, most notably the H1b and the L, which are known as “dual intent” visas). Another common NIV requirement is that the visa-holder should not work in the U.S. without permission. If you breach these requirements, there are often—but not always—immigration consequences.

For example, up until the rule change, if an alien entered the U.S. on a B or F visa, or on the Visa Waiver Program, and then filed to “adjust status” (i.e., get a green card) within 30 days of arrival, the alien was presumed to have had an “immigration intent” at the time of entry, and thus USCIS would assume that she lied about her intention to leave the U.S. at the end of her authorized stay (in government-speak, this is called a misrepresentation). If she violated her status between 30 and 60 days after arrival, USCIS might still decide that she misrepresented her intentions when she got the visa (this was known as the 30/60 day rule). If she filed for the green card on day 61 or beyond, she would generally be safe. There are exceptions and caveats to all this, but you get the picture.

Enter the new rule, which appears in the State Department’s Field Adjudications Manual (at 9 FAM 302.9-4(B)(3)):

[If] an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… you [the consular officer] may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

This change specifically affects people applying for visas at U.S. consulates, but it seems likely that USCIS could adopt the rule as well, which would mean that people who come to the United States on certain NIVs and who engaged in “non-status-compliant activity” within 90 days of arrival will be presumed to have lied in order to obtain their visas. All this means that the 30/60 day rule is dead, at least so far as the State Department is concerned, and probably for USCIS as well.

This is all pretty boring and confusing, you say. What does it have to do with asylum seekers?

The issue is, if a person comes to the United States and applies for asylum within 90 days of arrival, he might be considered to have lied about his “immigration intent” in order to obtain a U.S. visa. In other words, requesting asylum (and thus asking to stay permanently in the United States) is not consistent with coming here on most NIVs, which require that you promise to leave the U.S. at the end of your authorized stay.

This problem is not just academic. I’ve recently heard from a colleague whose client came to the U.S., won asylum, and obtained a green card. But when the client applied for citizenship, USCIS accused him of a “misrepresentation” because he entered the country on an NIV and then sought to remain here permanently through asylum. This example comes amidst several cases—including one of my own—where USCIS seems to have pushed the boundaries of the law in order to deny citizenship to asylees. It also seems part of a larger pattern to “bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing.”

I should note that the above examples are not related to the new State Department rule (probably), though if USCIS implements a similar rule, it would potentially expose many more asylees (and other USCIS applicants) to the same fate.

It’s a little hard to understand what USCIS is trying to do here, or why they are doing it. For one things, there is a waiver available to refugees and asylees who commit fraud (the waiver forgives fraud and allows the person to remain in the United States). Also, when a person fears persecution in her country and qualifies for asylum, low-grade misrepresentations are routinely forgiven. So the likelihood that any asylee would ultimately be deported for having lied to get a visa is close to zero. In other words, USCIS can delay the process, and cause these asylees a lot of stress and expense, but in the end, they will remain here and most likely become U.S. citizens (eventually).

Perhaps this is the Trump Administration’s implementation of “extreme vetting.” If so, it’s more appearance than substance. It looks as if something is happening, but really, nothing is happening. Except of course that USCIS is mistreating people who have come to the United States and demonstrated that they have a well-founded fear of harm in their home countries. So—like a Stalinist show trial—such people will admit their “misrepresentations” (in many cases, for the second, third or fourth time), go through the hassle, stress, and expense of the waiver process, and then end up staying here just the same.

It’s too bad. USCIS can do a lot of good—for immigrants and for our national security. But unfortunately, their current path will not lead to improvements in either realm.

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Asylum Seekers ♥ Asylum Office

by Jason Dzubow

According to a new report released by USCIS, asylum applicants are “highly satisfied” with the service they receive at the nation’s various Asylum Offices.

Asylum seekers who appeared for interviews at the different Asylum Offices answered the written survey.  A total of 933 responses were collected from September 2011 through March 2012. Surveys were collected after the interview but before the final decision (for obvious reasons).

Asylum Officers celebrate the positive survey results.
Asylum Officers celebrate the positive survey results.

According to the survey, customers are highly satisfied with the services they receive from USCIS’s Asylum Offices; their overall satisfaction index is 87 on a scale of 0 to 100. For comparison, the federal government satisfaction index is currently 67. At the office-level, customers who were serviced by the Miami Asylum Office, Chicago Asylum Office, and the Houston Asylum Office were the most satisfied with indices of 93 or 94. Conversely, satisfaction was the lowest for those serviced by the New York Asylum Office with a satisfaction index of 70.

Overall, 17% of respondents felt that the Asylum Officer was either argumentative or biased; at the New York office, 29% of respondents felt the officers were argumentative or biased.  In LA, the next highest, the number was 23%.

With overall satisfaction at 87, the report opines that it may be difficult for USCIS to significantly improve its asylum office customer satisfaction scores at an aggregate level. However, the report notes, at certain locations there appears to be opportunity for improvement. Most significantly, in New York and Los Angeles, Asylum Officers should try to provide more information to applicants about the process. They should also try to appear less argumentative during interviews. According to the report, offices in Los Angeles, Newark, New York, and San Francisco should address wait times for the start of the interview.

The survey also contained a comments section. Most comments are very positive.  A typical comment reads, “Everything was good.”  Some of the more interesting comments include:

Cannot think of anything right now to improve the service, how do you improve on perfection?
 
Smile more.
 
No need to improve anything unless you decide to improve something.
 
My service overall was good with exception of the officer which directed my interview in a coercive and threatening manner.
 
Provide free coffee and donuts [I fully endorse this idea!].
 
The survey results (if not all the written comments) comport with my view of the Asylum Office. I find the officers to be very professional and courteous. They don’t always grant my cases (the nerve!), but in the large majority of cases, I find that they are fair and reasonable. Congratulations to the Asylum Officers on the survey results and on a job well done.

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