The Republican Party Platform is finally here (yippee!). While the document does not bind either the party or its candidate, it does tell us something about Republican thinking on a wide variety of topics. Two paragraphs in the 54-page Platform cover asylum and refugee issues, and I want to discuss those here.

The RNC Platform would block "the gays" from receiving asylum in the U.S. It would also make it easier for them to get asylum FROM the U.S.

The RNC Platform would block “the gays” from receiving asylum in the U.S. It would also make it easier for them to get asylum FROM the U.S.

Interestingly, the Platform itself does not call for a “total and complete shutdown of Muslims entering the United States.” However, it does view asylum through the prism of national security, and it does place extra scrutiny on people coming from “regions associated with Islamic terrorism.”

The first paragraph of interest (found on page 26 of the Platform) reconfirms America’s commitment to assisting refugees, but with a few caveats–

From its beginning, our country has been a haven of refuge and asylum. That should continue — but with major changes. Asylum should be limited to cases of political, ethnic or religious persecution. As the Director of the FBI has noted, it is not possible to vet fully all potential refugees. To ensure our national security, refugees who cannot be carefully vetted cannot be admitted to the country, especially those whose homelands have been the breeding grounds for terrorism.

I take issue with a few points here. First, the Platform seeks to limit asylum to people who face “political, ethnic or religious persecution.” Under our current law, a person can qualify for asylum if she fears persecution on account of race, religion, nationality, political opinion or particular social group. Presumably, “ethnic” persecution in the Platform refers to persecution on account of race or nationality under existing law, which means that four of the five protected categories are covered in the RNC document.

Conspicuously absent from the Platform’s language, however, is protection for people who are members of a “particular social group.” This omission is significant for a few reasons. First, it contravenes our treaty obligations (we are signatories to the 1967 Protocol Relating to the Status of Refugees, which covers all five protected categories). If we seek to modify our obligations under the treaty, other countries may follow suit. This would have an unfortunate ripple effect on refugee protection throughout the world. It would also downgrade our leadership role with regards to refugee resettlement, and may signal a withdrawal of our leadership in world affairs more generally.

Second, the change would mean that we no longer offer refuge to many people who we now protect. Those who fear persecution on account of sexual orientation, female genital mutilation, and domestic violence are some prime examples of people we protect because they are members of a particular social group (“PSG”). Indeed, those refugees most affected by this change would be women and sexual minorities. I suppose this is consistent with the rest of the RNC Platform, which–to say the least–is not all that friendly towards women or LGBT individuals.

Third, eliminating PSG as a protected category would effectively end any possibility for relief for the unaccompanied minors who have been arriving at our Southern border in large numbers since about 2012. Most of these young people are fleeing violence in Central America. They already have a difficult time obtaining protection in the U.S., but if the PSG category were eliminated, the likelihood that any of them could obtain asylum would become virtually nil.

The second paragraph in the RNC Platform related to refugees appears on page 42 of the document–

[We] cannot ignore the reality that border security is a national security issue, and that our nation’s immigration and refugee policies are placing Americans at risk. To keep our people safe, we must secure our borders, enforce our immigration laws, and properly screen refugees and other immigrants entering from any country. In particular we must apply special scrutiny to those foreign nationals seeking to enter the United States from terror-sponsoring countries or from regions associated with Islamic terrorism. This was done successfully after September 11, 2001, under the National Security Entry-Exit Registration System, which should be renewed now.

I take issue with a number of points in this paragraph, but here I will discuss only those related to refugees. First, the paragraph echos Donald Trump, who has claimed that we don’t know where these refugees come from, or who they are. This is utterly false. In truth, we know far more about the refugees who come here than we know about other categories of immigrants or non-immigrant visitors. Refugees are subject to intensive screenings and multiple background checks. Indeed, we probably know more about the refugees (and immigrants) entering our country than we know about our own citizens, and most studies show that such people are less likely to commit crimes than the native born.

I also disagree with the Platform’s plan to re-start the National Security Entry-Exit Registration System (“NSEERS”), which was suspended in 2011. Under NSEERS, men and boys from many Arab and Muslim countries were required to specially register with the U.S. government. The confusing system led to great difficulty for many of these people (and their families), but resulted in no terrorism-related convictions. In other words, there is basically no evidence that NSEERS made us any safer, but there is plenty of evidence that it harmed innocent people who happened to be from Arab or Muslim countries.

Finally, there is one point in the Platform that I agree with: We must continue to screen refugees and others who come to our country from regions that produce terrorists (and from everywhere else as well). Of course, we already do this, and I don’t think there is anyone in American who thinks we should do otherwise. The RNC’s implied accusation here is that Hillary Clinton and Barack Obama have been letting un-vetted refugees enter our country. That is a lie, and anyone who follows the painfully-slow process of refugee admissions knows it.

What little the RNC has to say in its Platform is not good for refugees, and it is especially bad for refugees who happen to be women, children, LGBT individuals or Muslims. If there is a silver lining here, I suppose it is that the Platform devotes only two paragraphs to refugee issues. These days, when it comes to Republicans and refugees, the less said, the better.

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The Black Lives Matter movement has helped bring attention to the problem of police violence in the African-American community. To me, the problem is a symptom of broader issues in our society: Institutionalized racism that has reduced educational and economic opportunities for African Americans, the American penchant for punishment over prevention, police culture and the militarization of many police forces. Regardless of the root causes, many individuals are fearful that they—or their family members—will be harmed or killed by law-enforcement officers because of their race. As an asylum attorney, I’ve received inquiries from several such people. They want to know whether they are eligible for asylum under international law.

Who knew that the road to safety would be this long?

Who knew that the road to safety would be this long?

To qualify for asylum, an applicant must demonstrate that she meets the definition of a “refugee.” According to the 1951 UN Convention Relating to the Status of Refugees, a “refugee” is “any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”

The first thing to notice is that in order to qualify for asylum, an applicant must be “outside the country of his nationality.” In other words, you cannot be a refugee, as that term is defined under international law, unless you leave the United States.

Assuming you reach another country and apply for asylum, you will need to show that you were persecuted in the past or that you have a well-founded fear of future persecution. Although the term has never been clearly defined, “persecution” is generally considered “an extreme concept, marked by the infliction of suffering or harm… in a way regarded as offensive.” People who have been harmed by the police (and survived) may be able to demonstrate past persecution, depending on the severity of the harm. Imprisonment, by itself, is probably not a severe enough harm to constitute “persecution” (though perhaps solitary confinement is). Physical violence may be enough, depending on what happened. Physical violence that has resulted in severe injuries, or sexual violence, probably does rise to the level of “persecution.”

If you have been persecuted in the past, and if the persecutor was motivated to harm you because of your race (or other protected ground, like political opinion), then you would likely be considered a refugee under international law.

For people who have not been harmed in the past, but who fear future harm, the situation is more complex—and the likelihood of obtaining asylum is probably lower. One path to asylum involves a “pattern and practice” of persecution against a specific group. Where the entire group–for example, Tutsis in the 1994 Rwanda genocide–faces persecution and the asylum applicant demonstrates that she is a member of that group, she can receive asylum. To demonstrate a “pattern and practice” (at least under U.S. law), the applicant would have to show that the persecution is systematic, pervasive or organized. I have not seen evidence that the persecution of Blacks in America is organized. However, one could argue that it is systematic (in a “now we see the violence inherent in the system” sort-of way) and/or pervasive (i.e., widespread). Both these points strike me as relatively weak given the high standard necessary to prove “pattern and practice,” but I suppose different fact-finders might reach different conclusions depending on the evidence presented (how often does violence need to occur for it to be considered “pervasive,” for example?). One Canadian court that examined the matter found African Americans do not face a pattern and practice of persecution in the U.S. and denied asylum to a Black man who feared persecution by the police (the court found that he had not suffered “past persecution,” and this made his case more difficult).

In the absence of a “pattern and practice,” an African-American asylum seeker could still obtain asylum if he demonstrates a reasonable possibility of persecution based on his race (or other protected ground). In interpreting international law, U.S. courts have stated that an alien may qualify for asylum where there is a 1-in-10 chance of persecution. This is a fairly low standard, but even so, a person needs to demonstrate some type of individualized threat in order to qualify. I doubt that the average African American would be able to show that he faces a 10% chance of persecution by the police. Indeed, in 2015, there were about 46.3 million African Americans in the United States. During that same year, 102 unarmed African Americans were killed by police. This is obviously far less than 10% (it’s about 0.0002%). Of course, if we focus on young men, and include other harm (aside from killing), the likelihood of persecution is higher, but I still suspect that it would be difficult to show a 10% chance of harm.

Although the average African American would probably not meet the standard for asylum, some African Americans–those who have received specific threats and, of course, those who were previously persecuted–might be able to prove that they face a likelihood of harm and thus meet the definition of “refugee.”

Even for people who are deemed “refugees,” this may not be the end of the story. You still may not qualify for asylum in a new country if that country believes you can relocate to a safe place within the United States, or if the persecutor (here, the police officer) was a rogue actor and the U.S. government is able and willing to protect you. Of course, you could also be denied asylum for a host of other reasons, depending on the specific laws of the country where you are seeking refuge.

In the end, it seems that most African Americans would not qualify for asylum, but some might: Those who have been persecuted in the past, and those who have been threatened with harm. If you are actually thinking about seeking asylum, it would be a good idea to talk with a lawyer in the new country before making any plans. While I doubt that many African Americans will actually leave the U.S. to seek asylum abroad, the fact that some people are considering this option speaks to the sad state of affairs in our country.

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Asking a lawyer whether you need a lawyer for your asylum case is kind-of like asking a pastry chef whether you should have dessert. My answer: Of course you should hire a lawyer, and have a double helping of Windsor Torte while you’re at it.

A decent lawyer can help you prepare and present your case, and increase the likelihood of a successful outcome. However, there are some people who need a lawyer more than others, and if your resources are limited, you will have to decide how best to prioritize your needs.

"I don't need a doctor - I'll fix it myself!"

“I don’t need a doctor – I’ll fix it myself!”

So how do we know that a lawyer actually improves the chances for success? And who really needs a lawyer, anyway?

First, there has been at least one statistical analysis of how lawyers impact asylum cases, and the result is pretty definitive: Lawyers matter. A study of asylum decisions in Immigration Court by TRAC Immigration finds that, on average, asylum applicants with a lawyer win about 51.5% of their cases. Asylum applicants without a lawyer win only about 11% of their cases (the effect was even more disparate for “priority” cases involving women and children). That’s a big difference, but there are a few caveats to these numbers.

For one thing, the cases reviewed in the study were in court. Such cases are adversarial, and can be procedurally complex, as compared to cases before the Asylum Office. Thus, it is harder for an unrepresented applicant in court to win his case. Also, some applicants receive pro bono (free) legal assistance. However, it is more difficult to get a pro bono attorney if you have a weak or meritless case (or if you have criminal convictions). This creates a vicious cycle, where applicants with bad cases are less likely to receive legal representation, and I think it probably skews the statistics, making it appear that people without lawyers are more likely to lose their cases (since people with weak cases have a harder time finding legal representation). Even considering these factors, it does appear that competent representation makes it more likely that an applicant will be granted asylum.

But if you are like many asylum seekers, you have limited resources. Attorneys can be expensive, and pro bono representation can be difficult to secure. So who really needs an attorney, and who can get by without one?

If your case is before an Immigration Court, it is best to have a lawyer. Most judges will pressure you to get a lawyer, and they will usually give you an extension of time to find an attorney. Court cases are adversarial, which means that if the ICE attorney aggressively opposes relief, it can be very difficult—even for an applicant with a strong case—to effectively present his case, avoid any pitfalls, and obtain a grant.

For applicants whose cases are before the Asylum Office, the story is a bit less clear-cut. Asylum Office cases are (supposedly) non-adversarial. The procedural requirements are generally (but not always) less stringent. Many people prepare their cases and attend the asylum interview without the help of a lawyer (some use paid “translators,” with mixed degrees of success), and there are many examples of pro se (unrepresented) applicants who receive asylum. There are, however, some red flags, which, if present, militate in favor of hiring an attorney.

Asylum applications may be denied if they are not filed within one year of the alien’s arrival in the U.S. There are exceptions to this rule, but if you are filing for asylum more than a year after you’ve come to the United States, it is a good idea to have an attorney.

Asylum applications can also be denied if the applicant has been convicted of a crime, or if the applicant “persecuted” others in her home country (or elsewhere). If you’ve been convicted of a crime, or if you fall into a category where the U.S. government might suspect you of persecuting others (such as police officers, members of the military, members or supporters of armed groups), you should have a lawyer.

In addition, people who provided “material support” to terrorists are barred from asylum. Unfortunately, that covers a broad range of activities. So if you’ve given money or any type of support to a terrorist group—even if you did it under duress—you need a lawyer. Doctors who treated combatants fall into this category.

Other issues that might require the help of an attorney include travel back to the home country (especially after an instance of persecution), or living in a third country before coming to the United States.

Finally, to win asylum, the applicant must show that she faces persecution “on account of” race, religion, nationality, political opinion or particular social group. If you do not obviously fit into one of these categories, it is helpful to have an attorney, who can make a legal argument that your case falls into a protected category, and that you are thus eligible for asylum.

Even if there are no obvious issues in your case, a lawyer’s advice can be helpful. Sometimes, there are problems in a case that are not apparent until a lawyer reviews it. You are far better off identifying and addressing such issues before they become a problem. For those who cannot afford an attorney, or who choose to do their cases pro se, it is possible to win. But some cases are more difficult to win than others, and-especially for these problem cases—the help of a competent attorney can make all the difference.

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Let’s say you own a grocery store in Mosul, Iraq. Your town is conquered by the Islamic State, and an IS fighter comes to your store, grabs your teenage daughter, puts a gun to her head, and threatens to rape and kill her unless you give him a glass of water. You pour a glass of water, hand it to your daughter, and she gives it to the fighter. Now, lets say that you, your daughter, and the IS fighter get to the United States and request asylum. Question: Who is barred from receiving asylum? (a) The IS fighter; (b) You; (c) Your daughter; (d) All of the above.

If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.

If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.

If you guessed “d”, you win. By giving a glass of water to the IS fighter, you and your daughter have provided “material support” to a terrorist, and you are both barred from receiving asylum in the United States. Even though you gave the glass of water under duress to save your child’s life. And even though it was only one glass of water (what we lawyers call “de minimis“). How can this be?

After the attacks of September 11, 2001, Congress greatly expanded pre-existing law in order to prevent terrorists from taking advantage of our immigration system. These laws include the rules relating to “material support,” which one jurist has called “breathtaking in… scope,” see Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (Acting Vice Chairman Osuna, concurring). The opinion continues:

Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives

Id. And anyone who provides any type of support to these “terrorists” is subject to the material support bar.

The problem is that under these rules, lots of people meet the definition of a terrorist or a person who provided material support to a terrorist. And it’s not just people like the shop owners from Mosul. Under our existing law, George Washington would be considered a terrorist. He led an armed rebellion against Great Britain. Ditto for the other founding fathers. Betsy Ross gave material support by sewing a flag for the rebels. There are more modern examples, of course. How about Nobel-prize winning author and Holocaust survivor Eli Wiesel, who was interned in a Nazi slave labor camp where he provided—you guessed it—material support to the Germans. And how about John McCain, who gave material support to the North Vietnamese by participating in a propaganda video (after being tortured while a prisoner of war). Indeed, even Luke Skywalker would be considered a terrorist under the current rules since he participated in armed resistance against the Empire.

Maybe the picture I am painting is a bit too bleak. While there is no statutory exception for the material support bar, the Secretary of State and the Secretary of Homeland Security have the authority to waive certain Terrorism-Related Inadmissibility Grounds (“TRIG”). In that vein, DHS has issued group-based exemptions that allow people involved with certain “terrorist” groups to obtain status in the U.S. It is also possible to receive an individual exemption through a Byzantine (and sometimes infinite) process. If your application is being held because of TRIG, you can inquire about your case status at [email protected].

One government entity that does not have the authority to grant a TRIG exemption is the Department of Justice (“DOJ”). This is significant because the Immigration Courts are part of the DOJ. Thus, Immigration Judges cannot grant asylum cases where the alien is subject to TRIG, even when the alien provided material support under duress. In a depressing, but not particularly surprising decision last week, the Board of Immigration Appeals confirmed that there is no implied duress exception to the material support bar:

[A]bsent a waiver [from the Secretary of State or the Secretary of Homeland Security], an alien who affords material support to a terrorist organization is inadmissible and statutorily barred from establishing eligibility for asylum and for withholding of removal under the Act and the Convention Against Torture, even if such support was provided under duress.

Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The problem is that an alien can only get an exemption after he is ordered removed from the United States, and even then, there is no particular procedure to follow to request an exemption. It seems the best an alien (or his attorney) can do is to contact the DHS/ICE Office of the Chief Counsel and request consideration for an exemption. An exemption is only available if asylum would have been granted but for the TRIG issue. In other words, the alien needs to show that if it wasn’t for the TRIG problem, the Immigration Judge would have granted him asylum (helpful hint to lawyers: If your client is barred from asylum solely due to TRIG, try to get the Judge to state that explicitly in her decision; this will help when applying to DHS for an exemption). If the Secretary of Homeland Security grants the exemption, the alien then needs to re-open his court case in order to receive asylum. Legend has it that DHS does sometimes grant exemptions, so it certainly is worth a try, but my guess is that this is a slooooow process.

Blocking terrorists and their supporters from the U.S. is obviously an important goal–it protects our country and it protects our immigration and asylum system. However, the material support bar is much too broad. It fails to distinguish between terrorists and their victims. Worse, it treats victims as if they were terrorists. The recent ruling from the BIA underlines this sad fact. It also illustrates why the law needs to be changed. As we continue to work for immigration reform, I hope we will keep in mind those who have been victimized by terrorists and victimized a second time by our overly-broad anti-terrorism law.

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Dr. Jill Stein is the Green Party’s presumptive nominee for President of the United States. In a recent appearance on Democracy Now!, she argued that there was little difference between Hillary Clinton and Donald Trump:

Trump says very scary things—deporting immigrants, massive militarism and, you know, ignoring the climate. Well, Hillary, unfortunately, has a track record for doing all of those things. Hillary has supported the deportations of immigrants, opposed the refugees—women and children coming from Honduras, whose refugee crisis she was very much responsible for by giving a thumbs-up to this corporate coup in Honduras that has created the violence from which those refugees are fleeing. She basically said, “No, bar the gates, send them back.” You know, so we see these draconian things that Donald Trump is talking about, we actually see Hillary Clinton doing.

CtuthuluDr. Stein says that, people are “very quick to tell you about the terrible things that the Republicans did, but they’re very quick to forget the equally terrible things that have happened under a Democratic White House…. It’s time to forget the lesser evil, stand up and fight for the greater good.”

I am a member of the Green Party. I am also an attorney who represents immigrants and asylum seekers. My clients have fled persecution in the Middle East, Africa, and the Americas. They are not people who have the luxury of idealism. They are people whose loved-ones have been killed by war and terrorism. Many of my clients have been attacked or threatened with death. Their first priority is to keep their families and themselves alive. By leaving everything behind–family members, friends, homes, careers–in order to find safety in America, they have already chosen the lesser evil that Dr. Stein speaks about.

We are now almost at the start (!) of the general election season. Are the two major candidates for President really the same, as Dr. Stein argues? My clients don’t think so. They are genuinely afraid of Donald Trump and of what he represents. When Mr. Trump threatens to ban Muslims from the United States, or when he refers to Mexicans (and Americans of Mexican decent) in a racist manner, my clients wonder whether there is a future for them in this country.

One of my clients is a women’s rights activist from Afghanistan. Will she be able to reunite with her young children, or will they be prevented from coming to the U.S. because of their religion? Other clients are a Syrian couple, both doctors, whose first child died in the war. Will they be able to keep their second child safely in the United States, or will they be forced to leave? What about my Iraqi client who was kidnapped and tortured by terrorists? Or my Pakistani-journalist client whose step-father was murdered in retaliation for the family’s democratic political views? And what about my Honduran client who was shot in the head by members of MS-13 because he refused to join their gang? If Mr. Trump had his way, I imagine all these people—and many more—would be blocked from seeking refuge in our country.

Contrast this with Hillary Clinton. Dr. Stein points out that Ms. Clinton supported a coup in Honduras that supposedly helped create the current refugee flow from that country, and that Ms. Clinton favors detention of asylum seekers, including families with children, who arrive at our Southern border. Based on the evidence I have seen, Dr. Stein’s claim about the coup is dubious: Violence was rising in Honduras before the coup, and it continued to rise after the coup. It is very difficult to pin the current waive of migration to the coup (or to credit Ms. Clinton with causing it). As for the detention of families at the border, I have yet to see a solution to this problem that is practically and politically viable. Should we simply throw open our border to all comers? My sense is that the large majority of Americans would oppose such a move. I personally think we should be using more alternatives to detention, but this is a policy tweak; not a complete solution. A leader’s first priority must be to protect our country. How that can be achieved without control of our border, I do not know. In sum, the “lesser evils” discussed by Dr. Stein are difficult policy choices, and reasonable people can differ on the solutions.

More important than her previous policy positions are the positions Ms. Clinton would likely take if elected President. The Democratic Party has moved to the left, and whatever policies Ms. Clinton advances will be determined largely by where the party stands politically. On immigration, it is in a different universe from the Republican Party and from Mr. Trump, whose hardline stance on immigrants is well known. For Dr. Stein to argue that the two candidates’ positions on immigration are similar is like saying that black is the same as white (ok, maybe it’s more like saying that dark gray is the same as light gray, but you get the idea).

I have been a member of the Green Party for over 15 years. I support many of it’s policies. But I have found it very difficult to support the top-down strategy that seems to have characterized the party since at least 2000, when Ralph Nader siphoned off votes from Al Gore. I have always felt that the Green Party should focus on state and local races. A “revolution” (whatever that means) will not come from the top down–it will come from the bottom up. So while I believe the Green Party should run a national campaign in order to raise awareness on various issues, I also believe it should ultimately endorse the Presidential candidate that represents the “lesser evil.” In the current election, that candidate is Hillary Clinton. There are major differences between her and Donald Trump, and those differences may determine whether people like my clients live or die. I hope Dr. Stein will keep such people in mind as we move through this election campaign.

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The purpose of the Asylum Office Scheduling Bulletin (“AOSB”) is to give asylum applicants “an estimate for when they might expect their interview to be scheduled.” At best, though, it’s a very rough estimate. The problem is that the AOSB tells only part of the story, and not even the most important part. Let me explain.

For two bits, Madame Blavatsky can predict when your interview will be. And I'll bet she's more accurate than the AOSB.

For two bits, Madame Blavatsky can predict when your interview will be. And I’ll bet she’s more accurate than the AOSB.

First, what is the AOSB? It is a chart that lists the eight main Asylum Offices. For each office, we can see the filing date of the cases that that office was interviewing in March 2016 (the most recent month listed on the chart). We can also see the two previous months (January and February 2016), which gives some idea about how quickly (or not) the office is moving through its case load.

So, for example, if you look at the Arlington, Virginia Asylum Office, you will see that as of March 2016, it is interviewing people who filed their cases in October 2013. In January and February 2016, Arlington was interviewing people who filed their cases in September 2013. The Chicago office has made the most progress during this period, advancing from May to August 2013. San Francisco is also making steady progress, moving from January to March 2014. Other offices–Houston, Los Angeles, Miami–have moved not at all. But again, this is only part of the story.

One thing the numbers do not tell you is that many of the cases filed prior to December 26, 2014 have already been interviewed. Extrapolating from our own case load, for example, I estimate that in my local Asylum Office (Arlington), approximately 60% of cases filed between October 2013 (the date listed on the AOSB) and December 2014 have already been interviewed. That’s because there was a policy change on December 26, 2014 affecting how the Asylum Offices handle their cases.

What happened is this: In the Good Old Days (and the dates for “the Good Old Days” differ depending on your Asylum Office), asylum cases were filed and interviewed relatively quickly. At my local office, most interviews took place two or three months after filing. Then, starting in 2012 or 2013, and continuing until today, the number of people arriving at our Southern border increased significantly. These migrants are mostly young people from El Salvador, Honduras, and Guatemala. They are fleeing violence and poverty. Some are attempting to reunite with family members already in the United States.

At the border, the migrants ask for asylum. They are generally detained and subject to a credible fear interview (“CFI”). A CFI is an initial evaluation of eligibility for asylum. It is easier to “pass” a CFI than to win asylum, and a large majority of applicants pass the interview. They are then permitted to present their asylum cases to an Immigration Judge or an Asylum Officer. Applicants who do not pass the CFI are deported.

This mass migration (often called “the surge”) affects the affirmative asylum process in a few ways. First, CFIs are conducted by Asylum Officers. These are the same officers who conduct asylum interviews at the various Asylum Offices. If the officers are spending time on CFIs, they obviously are not spending time interviewing applicants at the Asylum Offices. And since most of the people arriving at the Southern border are detained, which costs the U.S. government money, CFIs get priority over the Asylum Officers’ other work. Another way the surge has affected asylum seekers is that the Asylum Offices are prioritizing unaccompanied minors over other applicants. A large percentage of “surge” asylum applicants are minors, and thus their interviews receive priority over “regular” asylum seekers.

When DHS diverted resources away from the Asylum Offices, affirmative cases started piling up. This began in our local office in 2013. About 60% of the case we filed during this period were interviewed in the normal time frame; the other 40% disappeared. The disappeared cases came to be known as “the backlog.”

Once it became apparent that the backlog was not going away, the Asylum Division changed its policy. Starting on December 26, 2014, cases would be interviewed on a first-in/first-out basis. This meant that the Asylum Offices started interviewing the cases in the order received, starting with the cases that had disappeared into the backlog. The AOSB was first published in about July 2015, and since then, there has not been a whole lot of progress. In Arlington, for example, since July 2015, the Asylum Office has only advanced from August to October 2013. Los Angeles is worse. Back in July 2015, they were interviewing cases filed in August 2011. Today, they are still interviewing cases filed in August 2011. Ugh.

The U.S. government has been trying to improve the situation. The Asylum Division has hired more staff, including officers devoted exclusively to CFIs. We now have a system–limited to be sure–to process refugees in-country in Central America and bring them to the U.S. More controversially, we seem to have convinced Mexico to crack down on migrants passing through its territory, and we have prioritized the deportation of “surge” applicants, sometimes at the expense of our international obligations and due process of law. But if the AOSB provides any indication, these efforts have done little to reduce the backlog.

The most important factor impacting movement at the Asylum Offices still appears to be the number of people arriving at the Southern border. As long as these numbers remain high, I am not optimistic that the Asylum Offices will make much progress on the backlog. And the prospects for improvement in the near-term do not look good: Preliminary reports from the border indicate that we can expect more asylum seekers than ever, as migrants seek to enter the U.S. before our increasingly-hostile political climate makes conditions for asylum seekers at the border even more dire.

All these factors, and more (like, how cases and CFIs are distributed between Asylum Offices, how many Asylum Officers are detailed overseas to process refugees, etc.), contribute to movement on the AOSB. Because there are so many unpredictable factors at play, I don’t see how the AOSB can claim any accuracy as a long-term predictor of when an individual asylum interview will be held. To me, it’s kind of like looking at the weather report a month before your vacation. It doesn’t tell you much, but since it’s all you’ve got, you pay attention anyway.

In the end, there is some value to the AOSB: Once you see that your asylum filing date is coming up, you know to prepare for your interview. Also, for applicants, I suppose it is helpful to know that they are not alone in Backlogistan. But as far as predicting interview dates, the AOSB is a mirage in the desert–it may encourage you to keep walking, but it tells you nothing about when you might get your next drink of water.

{ 121 comments }

The Art of “No”

by Jason Dzubow on May 26, 2016

in Asylum Seekers, Immigration

In the field of immigration law, if you’re a reasonably-priced attorney in private practice, or if you work for a non-profit, you probably do a volume business. You have to, to make a living. And if you hope to get your work done, maintain a social/family life, stay healthy, and keep your sanity, there is one word that you need to keep handy at all times. As you might have surmised from the title of this piece, that word is “No”.

If only saying "no" to clients was as easy as just saying no to drugs

If only saying “no” to clients was as easy as just saying no to drugs

“Can I ask one quick question about my brother-in-law’s visa?”

– No.

“My friend’s lawyer said I can expedite my case if you just call the Asylum Office and ask them. Can you call them today?”

– No.

“I don’t have an appointment, but I stopped by to talk to you about my case. It will only take a few minutes. Can I see you?”

– No.

“You already completed and filed my asylum application, but I’ve decided I want to leave the country and withdraw my case. Can I have a refund?”

– No.

As the asylum backlog has turned into an unpleasant version of the Never Ending Story (without a cute little boy named Bastian to save us), client demands have proliferated. This is not the clients’ fault. It makes sense that they should turn to their attorneys with all their immigration questions (and their family member’s immigration questions) (and their friends’ immigration questions). While it’s certainly understandable, it puts the attorney in a difficult position.

In the good ol’ days, before the backlog, most asylum cases lasted less than six month. Even the slow cases were usually resolved in a year or so. But now, it takes years just to get an interview; never mind the delays post-interview. This means that the number of “active” asylum cases has increased. In my office, for example, I always had one large filing cabinet, where I kept my cases. Now I have three, and I might need to get a fourth soon (if you have one to sell, let me know). I’ve gone from maybe 60 or 70 active asylum cases to over 300.

With more numerous and longer-lasting cases, we lawyers have to spend much more time responding to our clients’ queries. Most of my clients are not particularly high-maintenance people, but even if they call once a month, and it takes me five minutes per call, that’s 1,500 minutes–or 25 hours–per month. That’s time I can’t spend working on other client matters, meeting deadlines or taking my traditional three-martini lunch. Indeed, if I was less protective of my time, I could spend all day addressing client questions, and no work would ever get done.

One way to turn these long-term cases in the lawyer’s favor is to bill the client for the lawyer’s time. That way, every five minute call translates into income. Many attorneys do that, but I suspect few lawyers specializing in asylum bill their clients this way, and it’s not how I do things. I hate keeping track of such little periods of time, and I hate nickel-and-diming the clients. They don’t much like it either.

The alternatives are not much better. Either the lawyer can say “no” to his clients, or he can go crazy trying to answer all their questions.

In my practice, I try to at least say “no” gracefully:

“Can I ask one quick question about my brother-in-law’s visa?”

– I’m sorry, I can’t answer questions that are not related to my clients’ cases. If he wants to come in for a consultation, he is welcome.

“My friend’s lawyer said I can expedite my case if you just call the Asylum Office and ask them. Can you call them today?”

– Actually, it does not work that way. I can email you a document explaining the expedite process.

“I don’t have an appointment, but I stopped by to talk to you about my case. It will only take a few minutes. Can I see you?”

– Sorry, I have a deadline and I cannot meet right now. If you talk to my assistant, she can schedule an appointment for you.

“You already completed and filed my asylum application, but I’ve decided I want to leave the country and withdraw my case. Can I have a refund?”

– Hell no! Get outta here before I call ICE and have you deported!

OK, that last one is not exactly how I would respond (and the subject of refunds is probably worth its own blog post one of these days), but you get the idea. You can say “no” and be protective of your time, at least to a large extent, while still helping your clients (though maybe on your time; not theirs).

And obviously there are real emergencies when the client does need advice immediately, but I find that these situations are rare. Indeed, many client “emergencies” are not urgent at all–the client just wants to know the answer to a run-of-the-mill question, and she wants to know it now. I usually ask the client to email me the basic details of the emergency, so I can decide for myself how urgently I am needed.

As with so many things in legal practice–and in life–the key here is balance. We need to be responsive to our clients, but we also need to protect our own time, so we can get our work done. Learning to say “no” is not always easy, and for me at least, it does not come naturally. But saying “no” in a respectful way is an essential skill for all immigration lawyers.

{ 75 comments }

The Great S-Visa Hoax

by Jason Dzubow on May 18, 2016

in Immigration, National Security

The S visa–colloquially known as the “snitch” visa–is a visa available for aliens who cooperate with law enforcement officers. The S visa is a non-immigrant visa, but it can lead to a green card once “the individual has completed the terms and conditions of his or her S classification.” “Only a federal or state law enforcement agency or a U.S. Attorney’s office may submit a request for permanent residence as an S non-immigrant on behalf of a witness or informant.”

The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).

The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).

In other words, when an alien cooperates with the government in a criminal investigation, the government can apply for the alien’s lawful permanent residency–the alien himself cannot independently apply for the green card.

The number of S visas available nationwide is quite limited. According to the Justice Department, 200 visas are available each fiscal year for “aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year [are available] for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State’s rewards program.”

While the visa is rarely granted, it seems to be regularly promised. The result: Many aliens who cooperate with law enforcement expect to receive an S visa, only to be left with nothing. I’ve recently witnessed this phenomena in a few of my own cases.

In one case, a young women was enlisted by her boyfriend to transport heroin from her country to the U.S. She was captured on arrival and immediately cooperated with American law enforcement. Thanks to her assistance, several drug traffickers were arrested and prosecuted. In the course of the criminal investigation, law enforcement officers promised her an S visa. Once the investigation was complete, the government failed to deliver the S visa. My client was eventually released from jail, married, and started a family. DHS left her alone for a while, but eventually placed her into removal proceedings. She now fears (quite reasonably) that the drug traffickers she informed on will seek revenge against her if she returns to her country. We applied for deferral of removal under the Convention Against Torture (the only relief she was eligible for after her conviction). However, because she was such a low-level member of the conspiracy, she was unable to identify specifically who might harm her in her country. DHS fought hard to have her deported, and the Immigration Judge ultimately found that we could not demonstrate a more-likely-than-not probability of torture, so she now faces deportation. What particularly bothers me about this case is that my client’s cooperation led directly to her fear of harm, but the U.S. government didn’t care. When they got what they wanted from her, the law enforcement agents dropped her like yesterday’s news.

In a second case, my client discovered that his attorney was operating a scheme to file fraudulent employment-based immigration petitions and false asylum claims (and no, I was not his attorney at the time – sheesh). He reported the fraud to law enforcement and actively participated in the investigation. In the end, the attorney was sentenced to prison and disbarred. Throughout the investigation, DHS and the FBI repeatedly–and in writing–promised the client an S visa and told him that the visa was being processed. Once the investigation ended, law enforcement suddenly changed their mind and informed my client that they would not pursue an S visa for him. The client had a legitimate claim for asylum, but he failed to file a case because he was relying on the U.S. government’s promise of an S visa. As a result, he missed the one-year filing deadline to submit his asylum application (an asylum applicant must file his case within one year of arrival in the U.S. or meet an exception to the one-year filing requirement; otherwise, he is ineligible for asylum). We litigated the case in court. In the end, the Immigration Judge denied asylum because the client had not filed within one year of arrival. The Judge found that reliance on the government’s promise of an S visa did not qualify as an exception to the one-year bar. Instead he granted my client withholding of removal, a less-desirable form of relief.

In both these cases, the government promised something, my clients relied on the promise, and the government failed to deliver. I understand the government’s need to obtain cooperation from witnesses, even to the extent that government agents lie to witnesses to secure their assistance. However, in the case of the S visa, some cooperating witnesses (like my clients) face real harm–including possible persecution or death in the home country–when the government breaks its promise.

So what can be done?

It seems to me that any alien who relies on the goodwill of the government in an S visa case is being taken for a fool. The offer of an S visa is not enough–cooperating witnesses need an attorney to press the government to keep its word. And this is not something that can be done after the criminal investigation is complete. Once the government gets what it wants (i.e., cooperation), there is nothing to prevent it from reneging on its promise.

Aliens with potential asylum claims are particularly vulnerable. For them, I would want a letter from the ICE Office of the Chief Counsel agreeing that the S-visa process constitutes “exceptional circumstances” excusing the one-year asylum bar. That way, in the (likely) event that the S visa does not come through, at least the alien will not be barred from seeking asylum because she missed a deadline.

In short, if law enforcement officers promise you an S visa, you should understand that in many cases, they will not follow through with their promise. But if you take steps to compel the government to issue the S visa, and you have a back-up plan in the event that the S visa does not come through, you will maximize the chance that your cooperation will lead somewhere other than a dead end.

{ 50 comments }

Donald Trump–who famously declared his intention to ban Muslims from coming to the United States, and who called Mexican migrants “rapists“– is represented in his presidential campaign by a law firm whose pro bono clients include Muslims and Mexicans, as well as many other immigrants and asylum seekers.

Don McGahn: Working hard to ensure that the asylum seekers represented by his law firm colleagues will face discrimination and deportation.

Don McGahn: Working hard to ensure that the asylum seekers represented by his law firm colleagues will face discrimination and deportation.

To be sure, all 2,400+ attorneys at Jones Day do not support Mr. Trump, and many have been quite vocal (at least anonymously) about their opposition to the candidate and their firm’s representation of him. It also seems that the lead attorney for the Trump campaign, Donald “Don” McGahn II, has been under some pressure to separate himself from the firm. However, at least for now, Jones Day seems to be all in for the Republican nominee.

Given it’s support for the candidate, perhaps it’s a bit ironic that Jones Day has spent considerable money and pro bono time representing the very people that Mr. Trump seeks to ban from our country. Indeed, Jones Day has been recognized for its service by a number of leading immigrant-advocacy groups, including Human Rights First, the National Immigrant Justice Center, Tahirih Justice Center, the Lawyers’ Committee for Civil Rights Asylum Project, Immigration Equality, and the Capital Area Immigrants’ Rights Coalition. These organizations represent immigrants and asylum seekers throughout the country. Many of their clients are detained in ICE custody. Some are criminals. Others are (gasp!) Muslim. The work of these organizations has helped save thousands of lives, and the support of firms like Jones Day is integral to their efforts.

And it’s not just organizational support. Aside from fundraising, a perusal of the firm’s recent pro bono successes reveals that Jones Day attorneys have directly represented Muslim, Mexican, and Central American asylum seekers, among many others. The firm has also represented criminal aliens in their quest to remain in the United States.

For example, in March 2016, three attorneys from the Jones Day Chicago office won a victory in the Ninth Circuit for a Salvadoran man convicted of perjury. As a result of this success, the man has an opportunity to present his case for relief to the Immigration Judge, and he now has a chance to stay in the United States with his wife and son. The firm also successfully represented a gay man from Jamaica who received relief under the Torture Convention (most likely, he was ineligible for asylum due to a criminal conviction), an Afghan man convicted of assault against a police officer, and a Mexican citizen who was charged with procuring his admission to the U.S. by fraud.

In addition to its criminal-immigration work, the firm has obtained asylum for a Muslim refugee from Somalia, a Muslim refugee from Iraq, and many other clients from majority-Muslim countries, including a woman from Mali, a family from Kyrgyzstan, a man from Turkey, a family from Iran,  a woman and her son from Iraq, and a man from Yemen (the firm’s website does not specify whether these clients are Muslim, but it seems likely that many are).

In fact, the firm has an entire webpage devoted to its pro bono asylum and immigration activities. Jones Day is rightly proud of this work–the firm has assisted scores of asylum seekers and immigrants. It has won many cases and has represented aliens in precedent-setting litigation before the federal appellate courts and the U.S. Supreme Court. The firm is also rightly proud of its support for various non-profits, which help thousands of foreign nationals and their families. But how do these effort squares with the firm’s representation of Mr. Trump, whose central message is anti-Muslim and anti-immigrant?

It seems pretty clear that there is no ethical conflict in terms of the Rules of Professional Responsibility that lawyers must follow, and I have no doubt that the firm can competently represent both Mr. Trump and its pro bono clients. However, it does seem to me that representing the Republican nominee creates a real moral conflict for Jones Day.

From my observation, big-firm attorney who represent asylum seekers and immigrants pour their hearts and soles into the cases. They often become friendly with their clients and they are heavily invested in the case outcomes. How would it feel to devote yourself to such a case, only to have your firm’s most high-profile client denigrate your efforts?

I am not a Jones Day attorney. I am not even a big-firm attorney. Never have been; probably never will be. But it seems to me that the character of a firm is important. That character is defined by the work the firm does–the paid work, and perhaps even more so, the pro bono work, which represents the firm’s core values. Mr. Trump’s campaign is diametrically opposed to the values that underpin much of Jones Day’s pro bono work, and I do not see how these two paths can be morally reconciled. I also do not see how the firm can maintain its integrity by helping needy immigrants at the same time it is working to elect a president who is a bigot and a xenophobe.

Abraham Lincoln once observed that a house divided against itself cannot stand. I wonder: Can a law firm?

{ 30 comments }

If you ask three lawyers how to write an asylum affidavit, you’re likely to get three (or more) opinions.

An applicant’s affidavit is the heart of her asylum case. It explains who she is, what happened to her, and why she needs protection. It’s also an opportunity to address weak points in the case and to mitigate inconsistencies that may have come up in prior encounters with U.S. government officials.

The debate about whether bigger is better goes all the way back to Affidavit and Goliath.

The debate about whether bigger is better goes all the way back to Affidavit and Goliath.

Given how important it is, it’s not surprising that different lawyers have different ideas about how to write a good affidavit. Some lawyers write long, very detailed affidavits. Others write short, perfunctory affidavits or do not write affidavits at all. Most of us–including me–fall somewhere in the middle.

There’s probably no “right” answer here, but for me, at least, the arguments for a detailed–but not too detailed–affidavit are the most convincing.

One problem with providing a lot of detail in an affidavit is that it creates more opportunities for inconsistencies: If there are more facts in the affidavit, the applicant has more to remember. For example, if the written statement indicates that the applicant ate peppered tuna with Nicoise salad before he was arrested, he better say that he ate peppered tuna with Nicoise salad when he testifies. Otherwise, the adjudicator might take the inconsistency as a lie, which could cause the applicant to lose his case.

Taken to an extreme, the concern about consistency between the written and oral testimony might suggest that the best approach is a less-detailed affidavit, or even that no affidavit is needed at all. From the attorney’s point of view, this would be nice, since the affidavit represents a large portion of the work we do. And it’s always convenient when the best interest of the client (avoiding inconsistencies) and the best interest of the lawyer (laziness) are aligned.

However, I think there is a major risk involved with using a minimal (or non-existent) affidavit. First, under the REAL ID Act, an applicant is required to submit evidence when it is available. Typically, this consists of letters attesting to the persecution or other aspects of the case, medical reports, police records, and country condition information. Many of these documents will include dates (for example, a letter might indicate that the applicant was arrested on May 15, 2010) or other details. It is important that the applicant herself is aware of all these dates and details, and that her testimony is consist with them. Writing an affidavit, and having the applicant read it, is one way to help ensure consistency between the applicant’s testimony and her supporting evidence.

Also, the affidavit is useful for ensuring consistency between all the different pieces of evidence. Instead of comparing each letter to every other letter, you need only compare each letter to the affidavit. As long as every document is consistent with the affidavit, every document should be consistent with every other document. And if everything is consistent, it bolsters the applicant’s credibility.

I suppose you could write out the affidavit to help the applicant with his story and to help ensure consistency, but then not give the affidavit to the Asylum Officer or Immigration Judge. In this way, you would gain the benefits of having an affidavit while avoiding the risk of inconsistencies created by submitting the affidavit. But I’m not a fan of this approach, as I think the affidavit benefits the decision-maker in several ways. For one thing, it gives the decision-maker a detailed understanding of the case, which, if presented correctly, should go a long way towards producing a successful outcome.

Second, it allows the applicant to point out and mitigate weak points in his case. Most Asylum Officers and Immigration Judges are pretty smart, and they’re experienced enough to hone in on problems in a case. If the problems can be overcome and explained in the affidavit, it will help satisfy the decision-maker before she even meets the applicant. This will allow the decision-maker to focus on the portions of the case that you want to emphasize.

In addition, in court, an applicant’s oral testimony is often incomplete. Court testimony is commonly truncated to save time (especially where the Immigration Judge and DHS attorney are already familiar with the story from the affidavit and thus do not need to hear the applicant repeat his entire tale). Should the application for asylum be denied, the affidavit is useful on appeal, and many lawyers–including yours truly–have used affidavit testimony to help win an appeal with the Board of Immigration Appeals or the federal circuit court.

So for all these reasons, I think a comprehensive affidavit is beneficial to the case. But of course, it is possible to include too much detail, which can trip up an applicant. The trick is to find the balance between providing the necessary information to convince the decision-maker and to humanize the client, but not so much information that the client can’t keep track of it all and the legally-relevant facts become obscured by irrelevant detail. Enough, but not too much. It’s an art, not a science, and with experience, each lawyer develops a style that works for his clients and hopefully helps achieve the clients’ goals.

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This week marks the beginning of Passover (called Pesach in Hebrew), the holiday celebrating the Jewish people’s liberation from slavery in Egypt.

In some ways, the story of Passover is the quintessential refugee story: A persecuted people flees oppression, undergoes a long, transformative journey, and arrives in a new land. Of course there are some unique twists: G-d directly intervenes to save the Israelites and ultimately transform them into the Jewish people, and–for a change–the persecutors get their comeuppance (there’s quite a bit of smiting in the story).

The Baal Shem Tov’s stories are the Besht ever.

The Baal Shem Tov’s stories are the Besht ever.

Like most Jewish holidays, over the years, many traditions and stories have been incorporated into our celebration. One of my favorite stories involves the tradition of welcoming the prophet Elijah—who heralds the coming of the Messiah—into our homes by opening our door near the conclusion of the Passover meal (called a Seder). Here is my favorite Elijah story. It originates with the Baal Shem Tov, also known as the Besht, a Jewish spiritual leader from the eighteenth century, and comes to me via the late writer Leonard Fein (who apparently heard it from his mother, an eighth-generation descendant of the Besht himself):

It happened that a Hasid (a disciple of the Besht) came one day to the master and said: “I don’t understand. Every year, we have a wonderful Seder, we do everything we have been instructed to do, and every year, we open the door for Elijah — and he never arrives. How can this be? I feel we are spurned.”

The Besht considered his disciple’s complaint, and then told him to load a wagon with food, wine, matzos, and also clothes and gifts for the children, and travel to a certain hut in a nearby village and spend the first two days of Pesach with the destitute family that lived there; it was there that he would certainly see Elijah.

The Hasid followed the Besht’s instructions punctiliously, and the next morning he arrived at the dilapidated hut in the nearby village. He was greeted warmly, his gifts were accepted with tears of gratitude, and that night, the entire family — mother, father, five children, along with their surprise guest, celebrated Pesach together.

Yet when the door was opened for Elijah — no Elijah.

Bitterly disappointed, the Hasid returned to the Besht and told him what had happened — and, more important, what had not happened. The Besht explained that Elijah must have been delayed, but that at Pesach time next year, the Hasid would surely encounter him. So he must at the time of the holiday return to the hut, once again with a wagon filled with food and gifts — but this time, before knocking on the door, he must first eavesdrop on the goings-on within the hut.

The next year at Pesach, the Hasid did as told, putting his ear to the door before knocking. He heard the mother’s lament: “We have no food for the holiday. Nothing. How can we celebrate?” And he heard the father’s reply: “Not to worry! Don’t you remember that last year, Elijah came with all that we needed, and gifts for the children as well? Have faith; he will surely come on time once more.”

So ends the story, save for its moral: Rabbi Hillel taught, “Where there is no man, be thou a man.” The Besht, through this story, taught, “Where there is no Elijah, be thou Elijah.” Through acts of loving kindness, each of us has the power to bring us all closer to redemption.

For those who have devoted themselves to helping refugees (or helping anyone else, for that matter), I think this story has particular resonance. While we continue to hope that the world situation will improve, and that fewer people will be forced from their homes by war and persecution, we must also continue our efforts to help those in need. As we read in Pirkei Avot (Ethics of the Fathers), “You are not obligated to complete the work, but neither are you free to desist from it.” In other words, Keep on Truckin’ and have a Happy Pesach!

{ 92 comments }

Delays in the U.S. affirmative asylum system have just about reached a breaking point. In our office, the longest-waiting applicant recently passed the three-year anniversary of his asylum interview, with no decision in sight. And of course, it’s not just post-interview delays (usually due to security background checks) that are the problem. Anyone interested in asylum knows about the long wait times–anywhere from two to five years–before an applicant even receives her interview.

"At least we're all together."

“At least we’re all together.”

Perhaps these wait times are tolerable for a single person or a family that is together here in the U.S. After all, such applicants (eventually) receive a work permit, which allows them to work, attend school, obtain a driver’s license, and live a relatively normal life (though it is a life overshadowed by the uncertainty and stress of not knowing whether they can remain here).

But what about an asylum seeker who is here, but separated from his spouse and children? Can a person wait for three, four, five years or more to reunite with family members? Will a young child even know her parent, if the only contact she’s had with the parent over the last several years has been via Skype? And won’t such long delays make the process of integration that much more difficult for family members who are “following to join” the principal asylum applicant?

For all these reasons, I believe USCIS should be prioritizing cases of applicants who are separated from their families. Unfortunately, USCIS does prioritize such cases.

There is a possible alternative to waiting for years separated from family: Arrive at a port of entry without a visa and ask for asylum. There are different ways to arrange such an arrival. It can be done legally or illegally. It can be very dangerous or relatively safe. My question here is, what obligation do attorneys have to advise our clients about the different options?

First, though, I want to briefly discuss the various options, starting from the worst and working up to the best (or, more accurately, the least bad).

The most illegal, and most dangerous way to come to the U.S. is by hiring a smuggler and paying him to bring you to the United States. There are all sorts of smugglers, and all sorts of smuggling routes. Some routes are relatively direct; others are circuitous. People die along these smuggling routes. Many others are robbed or raped. The majority seem to get detained in various countries for various periods of time. Some get stranded for months or years. And some are lucky and arrive with few difficulties. The cost of such trips varies widely. I have heard about people paying anywhere from $10,000 to $80,000; South Asian and Chinese migrants tend to pay more than Africans. This route almost always brings the alien to the Southern border, where she can try to enter the U.S. illegally (this has become increasingly difficult and dangerous) or where she can present herself to a U.S. Customs Officer and ask for asylum (this seems to be the more popular path these days).

Another illegal way to come here is to travel by air using a fake visa and/or passport, or the passport and visa of another person. Such documents can be difficult and expensive to obtain for an individual. For a family, the cost and trouble of getting fake documents is probably much greater. Once the alien arrives at the airport, he can present the documents and try to enter the U.S. or he can ask the Customs Officer for asylum.

A final option is to travel legally to Mexico, travel legally to the U.S. border, and inform the Customs Officer that you wish to apply for asylum.

In each case, assuming that she does not manage to pass inspection and enter the United States, the asylum seeker will be detained–maybe for a few hours and maybe for many months. Many asylum seekers who make it that far are ultimately denied asylum and deported (and some remain detained during the entire Immigration Court process).

Given all these risks, it’s clear that the best alternative is to come to the United States with a visa and then seek asylum after you enter the country. The problem, of course, is that it is very difficult to obtain a U.S. visa, especially for nationals of countries that tend to send asylum seekers to the United States, and especially especially for such nationals who want to come here with their spouse and children.

As lawyers, though, we have an ethical obligation to inform our clients of the options and to let them make their own decision. So when a father comes to my office and I explain the delays in the asylum system, and I tell him that he probably won’t see his children again for two, three or more years, and then he asks whether there is any way to bring his children here sooner, what am I to say? I suppose I can tell him about the process to expedite cases, but that process barely works and, at best, it is very unpredictable. I can also advise him to try to get visas for his family members, but we both know that this probably won’t work (and it’s also ethically questionable, since I would be advising the family members to come here on a non-immigrant visa when I know they plan to remain here permanently). But what about the “Mexico option”? Do I have an obligation to suggest that his family members apply for Mexican visas, which may be easier to get than U.S. visas, and then come to the Southern border for asylum?

The more I have considered this path, the more I think I am obligated to tell my clients about it. For one thing, it is entirely legal (yes, the title of this article says that it is “illegal,” but let’s call that a literary flourish to make the subject of the article more clear). If they arrive legally in Mexico, they can travel to the U.S. border and–even though they do not have permission to enter the United States–they can request asylum at the border. Despite misperceptions to the contrary, requesting asylum at border is legal. See INA § 208(a)(1).

Under U.S. law, the “circumvention of orderly refugee procedures” generally does not block a person from obtaining asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). In other words, if a person does not wait for resettlement as a refugee, but instead travels to the U.S. to seek protection, he is not blocked from receiving asylum. Indeed, in my office, we have represented many people who arrived without a visa at the Southern border, and none of them was denied asylum due to the “illegal” entry.

So if a client is here in the U.S., stuck in asylum purgatory, and asks what she can do to bring her spouse and children to the U.S., I suppose I must mention the “Mexico option.” I can’t say I would recommend this option—the spouse and children will likely end up detained—but I do not think this is a decision for me to make. Maybe they are better off in detention, with a chance of release to join their asylum-seeker family member, than in the home country indefinitely separated from that family member and possibly in danger themselves.

As a lawyer, I have an ethical obligation to inform my clients about all the lawful options available to them—even the options I personally do not prefer. The path through Mexico may be an option for some, and asylum seekers have a right to know about it, so that they can make the best decisions for their families.

{ 62 comments }

This piece is by our intrepid associate, Ruth Dickey, who is well-known for her love of Canada.

Given the current mess that is the U.S. asylum system, it’s not surprising that many asylum seekers who first land in the United States have been heading North to make their claims in Canada. Perhaps they are lured there by faster asylum processing times and a more generous attitude towards refugees. While it may sound idyllic to roll out of your igloo in the morning, pick up your Tim Horton’s coffee, and commute to work on a polar bear, obtaining asylum in Canada after you’ve been in the United States may not be so easy.

Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.

Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.

The main problem in Canada for asylum seekers who have passed through the United States is something called the Canada-U.S. Safe Third Country Agreement (“STCA”). This treaty requires applicants to make their asylum claims in the first safe country they enter. Thus, if you first enter the United States, you have to make your asylum claim here. If you first enter Canada, you have to make your claim in that country.

The STCA has four exceptions: (1) The applicant has family members with lawful status in Canada; (2) The applicant is a minor travelling without a parent; (3) The applicant has a document that allows him to enter Canada; and (4) The applicant faces the death penalty. More details about these exceptions can be found here.

The most common exception is probably the family member exception; it may also be the exception that creates the most confusion, so let’s take a closer look. Under the STCA, the term “family member” is broadly defined, to include:

  • spouse
  • legal guardian
  • child
  • father and/or mother
  • sister and/or brother
  • grandfather and/or grandmother
  • grandchild
  • uncle and/or aunt
  • nephew and/or niece
  • common-law partner
  • same-sex spouse

You can see that Canada allows people to meet the family-based exception with a wide range of relatives. Cousins are not on the list, but virtually all other categories of relatives are.

In our office, we currently represent several people who left the U.S. to seek asylum in Canada, only to be turned back at the border. One client hired us in 2014, after he attempted to enter Canada from the U.S. He had qualifying Canadian relatives who were naturalized citizens of Canada. However, he had no documentation to prove the relationships, and so Canadian border officials rejected his request for entry and quickly returned him to the United States.

Unlike many people who filed for asylum in 2014, our client was lucky enough to get a prompt interview. However, like many applicants, his decision was delayed. Only recently—a year and a half after his first interview—he was called for a second asylum interview where he was questioned about his trip to Canada. Unfortunately, a well-meaning, but not-so-well-informed relative in Canada tried to help our client while he was in Canadian custody, and made some contradictory statements to Canadian officials. The Asylum Officer had the records from Canada, and asked our client about the relative’s statements. Our client explained the situation as well as he could, and we are still waiting for a final decision.

There are some lessons to be drawn from this client’s ordeal. First, going from the U.S. to Canada can do more harm than good. Even if you don’t have some well-intentioned relative meddling in your case, it takes time for the Asylum Office to get Canadian immigration records and review them. That means more delay (on top of already long delays), and no one wants that. Also, if you already tried to seek asylum in Canada and were rejected, tell your lawyer and try to remember any communication that you or your relatives had with the Canadian authorities—the Asylum Officer will likely have access to your records, so plan accordingly.

Another lesson is that, if you are seeking a family exception–through your uncle, for example–you should bring civil records (and translations) demonstrating that you and your uncle are related. Our client’s experience shows that Canadian border officials will not necessarily wait around for you to collect these documents once you reach Canada. You need to have the documents with you before your trip.

Finally, if you do plan to seek asylum in Canada, and you are in the U.S., you would be wise to consult with a Canadian immigration lawyer before traveling. Maybe you qualify for an exception to the STCA and maybe you don’t. A Canadian lawyer familiar with that country’s immigration laws should be able to advise you before you take on the risk and expense of going to Canada for asylum.

There are certain advantages to asylum in Canada, and some people who pass through the U.S. are eligible to seek refuge in that country. But unless you plan ahead for your trip, you may end up back in the United States and worse off than when you started.

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As Donald Trump marches (goose steps?) toward the Republican nomination, there’s been much hand wringing about the reasons for his rise. But if you listen to his supporters, there are a few themes that stand out.

Mr. Trump's real estate empire and his political campaign were both built using immigrants.

Mr. Trump’s real estate empire and his political campaign were both built using immigrants.

One big issue is immigration. Last June, Mr. Trump called Mexican immigrants “rapists” and he has advocated banning all Muslims from entering the United States. Indeed, for a time, the only issue on the Trump campaign website was immigration (or maybe more accurately, anti-immigration).

There are many explanations for why Mr. Trump’s xenophobia has resonated with his supporters: Fear of terrorists and criminals, economic and cultural concerns, racism and white supremacism. In a way, these are not new. For most of our country’s history, U.S. immigration policies have reflected such sentiments, and at various times, all sorts of people have been blocked from entering the United States.

Here, however, I am interested in a different question: Whether the work of immigration advocates to help asylum seekers has contributed to the climate that produced Donald Trump.

Now wait just one gosh-darned second here, you say. Isn’t this like blaming Jews for the Holocaust or blaming African Americans for the KKK? I think there’s a difference. Allow me to explain–

Over the last 20 or so years, we’ve seen a marked expansion in the types of people who qualify for asylum. Some of this was Congressionally sanctioned–protecting victims of forced abortion, for example–but mostly, it was the result of creative lawyers pushing the boundaries of the law to protect their clients. Litigation has resulted in protection for victims of female genital mutilation, domestic violence, and forced marriage. To a more limited extent, victims of criminal gangs can also qualify for protection (sometimes), and many talented attorneys are working hard to improve asylum-case outcomes for such people, whose lives often are at risk.

Until about 2012 or 2013, the effort to broaden the categories of protection was somewhat theoretical. More people were eligible, but the number of asylum seekers actually applying remained relatively stable. But then things changed.

Between 2009 and 2012, increasing numbers of people–mostly Central American–began arriving at the Southern border to seek asylum (in FY 2009, there were about 5,500 such asylum seekers; in FY 2012, there were over 13,600). Since 2013, the numbers have skyrocketed. The most recent data shows that well over 6,000 people per month are requesting asylum at the border.

Most of the Central American applicants don’t easily fit within the traditional protected categories of asylum. They are fleeing criminal gangs and domestic violence, but given the expanded range of people who can qualify for protection, they now have a realistic possibility of receiving asylum.

As the number of migrants from Central America was on the upswing, activists for the DREAM Act began seeking asylum in order to highlight their own plight (the DREAM Act, which has been stalled in Congress, would grant residency to certain undocumented immigrants who were brought here as children and who have lived their lives in the United States, but who currently have no lawful immigration status). The DREAM activists received a lot of attention in the media, and they demonstrated in a public way that asylum seekers could arrive at the Southern border, request protection, and be paroled into the country to pursue their cases.

It seems likely that these two events–changes in the law wrought by litigation and wide-spread publicity about asylum seekers gaining entry into the U.S. at the border–helped lead to the current spike in migration. This is not to say that people coming here for asylum are not also fleeing severe violence in their home countries–they are: Honduras, El Salvador, and Guatemala are three of the most dangerous places on Earth. But when you look at data about violent crime in those countries, there is little evidence correlating increased violence with increased migration. In other words, these countries had previously been very violent; something else seems to have spurred the current wave of migration. Quite possibly, that “something else” includes an improved legal climate and publicity about asylum.

Added to all this is the Obama Administration’s decision to allow an additional 10,000 Syrian refugees to resettle in the U.S. at a time when fear of terrorism seems to be at an all-time high. This decision was not made in consultation with Congress; the President has the power to make such a decision and he did. A slew of Republicans weighed in against the move.

We now return to Donald Trump.

The idea that “liberal elites” are making decisions to encourage more immigration, and that ordinary Americans (i.e., Trump supporters) have no say in these decisions, fits neatly into Mr. Trump’s narrative. This world view is not unrelated to reality. Indeed, as we’ve seen, recent changes related to asylum and refugee policies likely have brought more immigrants to the United States, and these changes were not reached by consensus, or even by a democratic process. Rather, they were achieved through litigation and civil disobedience, or via executive action–all methods of choice for the “liberal elite.”

Should we–the liberal elite–have done things differently? I’m not sure, but I certainly won’t apologize for the work of advocates and activists to represent our clients and to expand the law. That is our job and our duty. The President’s decision to bring more Syrian refugees here was also the right choice, and–to me at least–represents a fairly tepid response to a massive crisis.

But obviously there is a problem. Many people feel left out of the decision-making process, and that is wrong. Immigration profoundly affects who we are as a country, and Americans–all Americans–have a right to participate in the policy debate on that topic. In taking action to protect our clients and save lives, we “elites” have, to a certain extent, trampled over the democratic process.

Perhaps this is all dust in the wind: People who support xenophobes like Mr. Trump aren’t likely to have their minds changed by refugee sob stories or even by evidence that immigration actually helps the country. The sad state of our national discourse has prevented the type of rational policy debate that we need to move towards a broader consensus. Against mounting evidence, the optimist in me still believes that democracy works. I’d like to see a little more of it in our national conversation about immigration.

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Ali Anisi Tehrani is an asylee from Iran. He raised some of these issue in a conversation we had one day over lunch, and I asked whether he might put his thoughts into a blog post. He was kind enough to do so–

“I think we should look to countries like Denmark, like Sweden and Norway, and learn from what they have accomplished for their working people,” Senator Sanders says. He’s not alone. Many Americans envy the Nordic countries, with their affordable education, health care for all, and subsidized child care.

Feeling the Spurn? Ali Tehrani worries about social democracy and immigrants.

Feeling the Spurn? Ali Tehrani worries about social democracy and immigrants.

While these countries are wonderful places to visit, as a political refugee who has spent time in Sweden, I fear that maybe this Nordic Valhalla would not be so heavenly for immigrants after all. Whatever it means for politicians like Bernie Sanders and his supporters, my experience tells me that in the long run, the Scandinavian model would be a disaster for immigrants and for people who plan to immigrate to the United States.

I have spent almost equal time in Sweden and the U.S. I enjoyed Swedish collective generosity and I studied there for free. The Swedes were even kind enough to send me to the U.S. as an exchange student with full medical insurance! An immigrant friend of mine had three surgeries there and spent weeks in hospitals. He paid very little. In fact, everyone in Sweden has health care and the deductible for medical expenses and medicine was only about $100. In a way, everything was perfect!

So what the heck am I doing in Washington, DC? Why did I leave the Nordic utopia and move to a country with no social benefits (even after receiving asylum, I was not eligible for short-term medical insurance in Virginia because I earned more than $150 per month)? Perhaps things in Sweden are not as they seem.

I lived in a small town in Sweden, not super immigrant-friendly. Everyone was nice and polite, and I never had any encounter that could be called explicitly racist or hateful. But I always had the sense that I was unwelcome. That I was a sort-of black sheep (or perhaps a brown one). I can’t say I would feel any different if I were in their shoes: Why should I work in order to pay for some foreigner’s education and benefits? Maybe as a result of this sentiment, the law in Sweden changed in 2011, and free education for foreign students was abolished.

The current situation in Sweden (and across Europe) is now quite disturbing. We are in the midst of the worst human catastrophe since World War II, and Sweden plans to reject up to 80,000 people who applied for asylum in the country last year; as many as half will be forced to leave against their will. Denmark, Sweden’s neighbor to the south, recently passed laws allowing the authorities to seize any assets exceeding $1,450 from asylum-seekers in order to help pay for the migrants’ subsistence (items of “sentimental value,” such as wedding rings, are exempt).

Many Swedes, even people who knew me personally and knew that I could not return to my native Iran, had a naive and sincere question: “So… when do you go back?” I never took it personally because I knew they did not ask me to be mean; they asked because they were really interested in the answer. During my three years in the U.S., no one has asked me this question. Literally, not one person! I have been welcomed here by many people; I don’t recall being welcomed in Sweden in this way. Maybe it’s just a lucky coincidence. Maybe.

If we take a look at some numbers, we might see one reason why immigrants are (or are not) wanted.

In 2014, the unemployment rate for native-born Swedes was about 5.1%; the foreign-born unemployment rate was 15.5%. It was about the same in Denmark: 5.4% for native-born Danes and almost 12% for immigrants. In Finland, the unemployment rates were 7.5% and 16.3% for native and non-native born people. That makes sense: Foreign-born workers may not know the language or culture, they have limited networks, and they may not have the education or skills required to succeed.

There’s a different story in the U.S. In 2014, there were 25.7 million foreign-born people in the labor force, comprising 16.5% of all workers. The unemployment rate for foreign-born persons in the United States was 5.6%, while the jobless rate for native-born Americans was 6.3%. What!? The unemployment rate for foreigners is lower than for native-born citizens? How can this be?

To me, the difference is that no one in the United States sees me as an extra person taking their social welfare benefits. Instead, they see me as another taxpayer pulling my own weight. There is opportunity here that does not exist in other countries. Of course, social and cultural norms are different in homogeneous societies like Sweden and Denmark, but I still believe that the most influential factor explaining how immigrants in different societies are treated is economic. Because of this, I worry that a Bernie Sander-style social democracy might make life in the United States more difficult, and less welcoming, for foreign-born residents like me.

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