Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (“BIA”) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.

ASYLUMIST: How did you get started in the field of immigration?

Since he retired, Judge Schmidt has been doing a lot of this (eat your heart out, Burmanator!).

Since he retired, Judge Schmidt has been doing a lot of this (eat your heart out, Burmanator!).

PWS: My wife, Cathy, and I had both spent our whole lives in Wisconsin. After I graduated from law school, we wanted to go somewhere else. Because I went to law school in Wisconsin, I did not have to take the bar—I was granted automatic admission to the Wisconsin bar. I’ve actually never taken a bar exam. I knew if I got a job with the federal government, I would not have to take a bar, so I was interested in working for the feds. Also, I had an uncle from Wisconsin who went to DC to work for the Roosevelt Administration and stayed for an entire career, and that also attracted me to federal service.

I applied to the Department of Justice through the Honors Program, but they rejected me. At the time, the Board did not actively recruit from the Honors Program, but they looked at the pool of applicants, liked my writing experience, and asked me to apply. I didn’t know anything about immigration, so the first thing I did was to go to the law school library and learn about immigration law. Then, we drove to Washington, DC for the interview. I met the Chairman, Board Members, and the Executive Assistant. Following an afternoon of interviews, the Chairman, Maurice A. “Maury” Roberts, a legendary immigration “guru,” called me in and said, “We discussed it at conference, and you’ll do.” With that auspicious beginning, I was hired. It was 1973. At the time, the BIA had nine staff attorneys and five Board Members.

I liked the job. It was a great group of people, and I learned a lot about the law. Chairman Roberts was a mentor to me and my office-mate. I also worked with the late Lauri Steven Filppu, who became a close friend, and who went on to become a Deputy Director of the Office of Immigration Litigation and then served with me on the BIA.I liked the human interest element and that it involved creative thinking. However, there was an ideological divide among the Board Members. At that time, Board Members were political appointees, rather than career appointments as they are today. The most senior Board Member had been appointed by President Truman. Chairman Roberts was appointed at the end of the Johnson Administration. I believe the other three Board Members were appointed during the Nixon Administration and did not have prior immigration backgrounds. Also, in those days, oral argument was a right, and the Board had four days of oral argument each week.

While I was there, Lauri Filppu and I helped form the BIA employees union, which was led by our friend and colleague Joan Churchill. She later became an Immigration Judge in Arlington and served with me there for several years before her retirement. One impetus for forming the union was an incident where the Board librarian was fired in the middle of our Christmas party. We thought that was harsh. The union still exists today. Indeed, as Chairman, I later had to go “head to head” with the union on an arbitration relating to the assignment of offices.

ASYLUMIST: You started as BIA staff. How did you get to be Chairman of the Board of Immigration Appeals?

PWS: I left the BIA at the end of 1975. I felt I had done what I could do there, and the work was getting repetitive. I was ready for something new, and so I moved to the General Counsel’s office at INS. At the time, Sam Bernsen was General Counsel. He was an amazing guy, who started as a messenger on Ellis Island when he was 17 and worked his way up to the top ranks of the Civil Service. He was also a good friend of Chairman Roberts. I advanced in the General Counsel’s office, and by the end of the Carter Administration, I was the Deputy General Counsel and the Acting General Counsel. The Deputy General Counsel basically ran the day-to-day operations of the INS’s nationwide legal program. The General Counsel during the Carter Administration, David Crosland (now an Immigration Judge in Baltimore) was the Acting Commissioner of the INS for about the last half of the Administration. At the time, I was only 31 or 32 years old. In that period, we were re-organizing the legal program. The GC took over supervision of Trial Attorneys (they were previously supervised by the District Directors – they now are called “Assistant Chief Counsels”). We also replaced Naturalization Attorneys with paralegals. Some of these changes were controversial within the INS. I got yelled at a lot by some of the District Directors. But, I can yell pretty loud too. This was really the beginning of what today are the Offices of Chief Counsel at the DHS. And, I worked on legislation, including the Refugee Act of 1980, which brought me into contact with David Martin and Alex Aleinikoff who later became well known in the immigration and refugee world. Other big issues I worked on were the so-called Cuban Boatlift and the Iranian Hostage Crisis.

I continued as Deputy GC during the Reagan Administration. I served under General Counsel Maurice C. Inman, Jr., known as “Iron Mike.” He was a real character, but we got a tremendous amount accomplished together. It was more or less a “bad cop, good cop” situation. We completed the legal program reorganization, and I also helped plan and execute the transfer of the Immigration Judges out of INS and into a separate entity, which was the “birth of EOIR” in 1983. Mike left in 1986, and I became the Acting GC again, right at the time that IRCA was enacted. But, I felt like I had reached a dead end.

I applied for jobs at law schools, and I found a head-hunter. However, it was the “Old Girl Network” through Cathy, who was then the president of our co-op preschool, which led to my next job. I was offered a senior associate position at Jones Day, which was just starting an immigration practice. At that point, the Commissioner, Al Nelson, and the Attorney General, Ed Meese, offered me the GC job, which I had always wanted.  But, I turned it down. I moved over to Jones Day, and remained there as a partner until 1992.

It was difficult to be an immigration attorney in a general practice firm, and so I eventually went to Fragomen, Del Rey, and Bernsen, where I succeeded my mentor Sam Bernsen as Managing Partner of the DC Office.  I did mostly business immigration. While I liked private practice, and learned much that has been helpful in making me a better judge, I felt that business immigration was like working at a well-baby clinic: Highly stressful, but fundamentally routine. We had to do as many cases as we could, as quickly as possible, which made it challenging to take on interesting cases that did not generate significant fees or repeat business. The clients wanted more for less, and there was always pressure to charge more and more money to contribute to the success of the firm. In the end, I suppose my heart was not in business immigration. I liked my clients, my colleagues, and making more money for our family than I had in government, but eventually it was not as satisfying as government work.

Around this time, the BIA Chair position opened up. I liked the idea of being in charge, and I felt there were opportunities to be creative. But, there was a lot of competition for the job. I lobbied the people I knew for their support, and in the end, I was offered the position. I began work in February 1995. I definitely think my experience in the private sector was a significant factor in my getting the job.

The goal when I started was to make the Board into the “13th Circuit,” to make it more like a court, to expand the diversity and the number of Board Members, to publish more opinions, and to develop a more humane and realistic view of asylum law. There was a big backlog, and we needed more Board Members. Up until then, different Immigration Judges were being detailed to the BIA to help with the work, but this system was cumbersome and it was very expensive. The original plan was to expand the Board from five to nine Members, but with then Director Tony Moscato’s help, we managed to expand it to twelve Board Members (four panels of three Members each). Attorney General Janet Reno was receptive to expanding the BIA, and we also increased the staff significantly and set up a team structure with senior supervisors. While I was there, we also changed the appeals filing system so that people could file directly with the Board (instead of filing appeals with the local court), and we added bar codes to help organize the files (up until that time, staff spent a lot of time looking for lost files). All these changes required us to expand the legal and clerical staff. And, the BIA itself kept on growing, reaching a membership of more than 20 just before the Ashcroft purge.

The expanded Board also became more polarized. Essentially, the middle fell out of the Board shortly after the Kasinga case in 1996. Before then, I was often in the majority, but after that time, I was out-voted in most precedential decisions. I think the enactment of the IIRIRA at the end of 1996 also had something to do with it. By the time of the R-A- decision in 1999—one of the most disappointing cases of my tenure because the majority squandered the chance to show real judicial leadership, take the next logical step following Kasinga, and “do the right thing” for domestic violence victims—I was pretty firmly entrenched in the minority for en banc decisions. I therefore often had to write or join separate dissenting opinions, known as “SOPs” in BIA lingo.

ASYLUMIST: This brings up an interesting point. I’ve long felt that the BIA should issue more precedent decisions, to provide more guidance to Immigration Judges. Why doesn’t the Board publish more decisions? And how does the Board decide which cases will be published?

PWS: I think that following the “Ashcroft purge,” the BIA has become hesitant to delve into controversial issues, particularly those that might provoke dissent. During my time at the Board, we did publish more decisions. Indeed, in my first full year as Chair, in 1996, we published approximately 40 opinions, many with separate dissents and concurrences, on cutting edge issues like particular social group, credibility, AEDPA, and IIRIRA. By contrast, in 2015, the BIA published approximately 33 decisions, and neither the dialogue nor the range of issues was nearly as extensive. Even with a greatly expanded and often divided Board, in 1999, one of my last full years as Chairman, we published 50 precedents, many dealing with extraordinarily difficult and complex issues.

The idea later promoted by the “Ashcroft crowd”—that a very large, diverse, and often divided Board cannot produce timely, important guidance–is ridiculous. Any party could request that a case be designated as a precedent decision. But generally, the Board was not receptive to party requests. The Chair or the Attorney General could also designate a decision as precedential. In addition, by majority vote, any panel could recommend a case for en banc consideration, and a majority vote of the Board could designate a decision as precedential.  Almost all of the precedents were the result of the en banc process.

Ironically, one the most common reasons for publication was because the majority wanted to “slam” the dissenters’ position. These tended to be cases that illustrated important points or new interpretations of the law. Also, when new laws went into effect, and we had to interpret new statutory provisions, we were more likely to issue a precedent decision. In fact, there was a lot of controversy on the Board surrounding the dissenting positions. The Members generally got along with each other, but there was a lot of stress related to differing viewpoints. Some Members felt that dissenters were attacking the BIA as an institution.  My being in the dissent in a number of precedents strained my relationship with some of my colleagues who were almost always in the majority.

Perhaps this was a consequence of my decision to change the format of BIA decisions so they looked more like court decisions. Therefore, Board Members had personal responsibility for their decisions. This made Board Members more accountable for their decisions, but it also gave them more of a personal stake in each decision.

Unfortunately, the BIA today has abandoned one of its primary functions—to provide timely expert guidance on the INA. Instead, it now publishes mostly non-controversial stuff, unless a Federal Circuit Court orders the Board to enter a precedential decision (I call this, “Go fetch me a precedent”). The initiative for shaping immigration law has gone from the BIA to the Federal Courts. There needs to be reform. I think the Board should function like the 13th Circuit; instead, it is more like the Falls Church Service Center. There are far too many single Member decisions, and the single-Member decisions are all over the place. The Board should use three Member panels in all cases where the IJ decision is not suitable for summary affirmance. That’s the “original streamlining” that I instituted, and it was intended to increase dialogue and careful deliberation, not eliminate it, as has been the case under the misguided “Ashcroft reforms.”

The Board also needs to be independent, but I do not see the willingness in the DOJ to make that necessary change, which would require legislation. When the DOJ wants to resist the Circuit Courts, Congress or public scrutiny, they talk about the Board’s expertise. But when the DOJ addresses IJs and Board Members, they refer to them as just “DOJ Attorneys” — employees who should follow the Attorney General. In other words, the DOJ’s external message is, “The BIA is like a court, so due process is provided and you should not intervene,” but the internal message to Immigration Judges and Board Members is, “You exist to implement the power of the Attorney General, you aren’t ‘real’ independent Federal Judges.”

ASYLUMIST: What other changes did you make at the Board while you were Chair?

PWS: We started doing more oral arguments, including oral arguments on the road (this is now prohibited by regulation). I thought if we were to function as an appellate court, we should be seen in the different places. Some Members liked this; others did not. Some thought oral argument was a waste of time. However, once I became an Immigration Judge, as you know, I was able to have oral argument in every case.

The BIA Pro Bono Project also started during my time as Chair. Under the Pro Bono Project, volunteer attorneys come to the Board office, review appeals of unrepresented immigrants, and then assign meritorious appeals to volunteer attorneys for representation. There was a lot of internal opposition to the Project because it was seen as the BIA deciding who gets represented and who does not. We had not done anything like this before. But, it has been highly successful.

The Virtual Law Library was also started under my tenure, with strong support and encouragement from Director Moscato. Also, we instituted an “electronic en banc voting system.” We also eliminated the position of “Chief Attorney Examiner/Alternate Board Member” and gave the duties of overseeing BIA staff to the two Vice Chairs who assisted me. That was after the last Chief Attorney Examiner, Neil Miller, who recently retired, was appointed to the Board by Attorney General Reno.

ASYLUMIST: Let’s take a break. In next week’s installment, Judge Schmidt discusses the “purge,” his prescription for fixing what ails the Board, and other controversial stuff. Stay tuned…

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How to Find a Free Asylum Attorney

by Jason Dzubow on September 22, 2016

in Asylum, Asylum Seekers

If you want to hire a lawyer to help you with your asylum case, you’ll find that attorney fees are all over the map. Some lawyers charge tens of thousands of dollars for a case. The larger immigration firms typically charge in the five to ten thousand dollar range. “Low bono” lawyers–and I include myself in this group–charge a few thousand dollars for an asylum case.

Remember, when you use a pro bono attorney instead of hiring me, you are taking food from the mouths of my children.

Remember, when you use a pro bono attorney instead of hiring me, you are taking food from the mouths of my children.

But what if you do not have any money for a lawyer, and even a “low bono” fee is too much? The options then are to do the case yourself (usually not a great idea) or to find a pro bono attorney.

Pro bono (short for “pro bono publico”) is a Latin phrase meaning “for the public good.” In the legal context, it basically means that the lawyer does the work without charging the client any money.

There are different types of pro bono attorneys. The major categories are lawyers who work for charities, attorneys who work for law school clinics, and private attorneys who volunteer their time. There are advantages and disadvantages to each type of pro bono attorney, and strategies for finding an attorney in each category are a bit different.

I suspect that most asylum seekers who find a pro bono attorney do so through a charitable organization. You can find a fairly comprehensive list of such organizations on the Executive Office for Immigration Review website (EOIR is the government agency that administers the nation’s Immigration Courts). The list is organized by state, which is helpful. If you do not see your location, click on a nearby state and you should find charities that serve your area. The American Immigration Lawyer’s Association (an association of private and non-profit attorneys) maintains a similar, and probably more comprehensive, list. Many of the organizations on these lists are free. Some charge a nominal fee (though in certain instances, I have heard about “nominal fees” ranging into the thousands of dollars, but this is the exception, not the norm). Also, most such organizations will not take a case where they believe the asylum seeker has the ability to pay for a lawyer.

The main disadvantage of using a charitable organization is that they are very busy, and they may not have the capacity to take your case. Also, if you need your case done in a hurry, they may not be able to accommodate you. Indeed, the reason lawyers like me exist is because the charitable organizations do not have the resources to help everyone. If you are able to obtain representation from a charity, they will either do the case in-house, or they will find you a volunteer attorney who will work under their supervision. Many of these volunteer attorneys do not specialize in asylum. However, the non-profits are adept at training and supervising their volunteer lawyers, and in most cases, you will get excellent representation.

So how do you get one of these charities to take your case? It often is not easy, and you may need to call/email/visit a number of organizations before you find one that can help you. But if you are persistent, you may be able to obtain representation. If one organization cannot help you, ask whether they can recommend another to try. It can feel like a full-time job to find a pro bono lawyer, but those applicants who make the effort are often able to obtain representation.

Another type of pro bono representation is the legal clinic. Many law schools have clinical programs where a law professor supervises law students in real-life cases. The students do the actual work on the case. I do not know of a comprehensive, updated list of law school immigration clinics, but this list (in Excel) from the Law Professors Blog Network should get you started. Also, you might try Googling “Law School Immigration Clinic” + the name of your city. Again, these clinics receive many requests for assistance and they have limited capacity, so it is often difficult to get one to represent you.

If you are represented by a law school clinic, you will work mostly with the students–after all, the primary purpose of the clinic is to provide a learning experience for the students. The obvious question is whether law students have the ability to adequately represent asylum applicants in court or in the asylum office. My observation is that, what the students lack in experience, they make up for in enthusiasm and energy. Also, the supervision at clinics (at least the ones I have seen) tends to be excellent. I do not know of any studies on this, but I expect that the success rate of clinical students is comparable to the success rate of practicing attorneys. One issue for clinics is that their cases must be scheduled according to the academic calendar, which can sometimes cause additional delays (though sometimes, it can make things faster instead).

Finally, many law firms have pro bono programs where the firm will represent individuals free of charge. Most firms get their pro bono clients from charitable organizations, but they can take on individual cases directly. If you know someone at a law firm (or if you know someone who knows someone), you might want to ask about this. If the attorney is not familiar with asylum law, she can likely partner with a non-profit organization, which will supervise her (the non-profits usually love to get new volunteer attorneys and are happy to help).

In truth, it is often difficult to find pro bono representation. Resources are stretched thin. But if you persevere, it is possible to find a free attorney. And having an attorney can make a big difference in the outcome of your case.

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Refugee in Iconic WWII Photo Dies at Age 92

by Jason Dzubow on September 16, 2016

in Asylees and Refugees

On the afternoon of August 14, 1945, George Mendonsa was sitting in a movie theater with his date in New York City. Home from the Pacific Theater, where he served in the navy, Mr. Mendonsa was expecting to return to war and to the long-anticipated (and dreaded) invasion of Japan. Suddenly, the movie stopped, the lights came on, and someone announced that the war was over.

This is how it looks when a war ends (from the days when wars actually ended).

This is how it looks when a war ends (from the days when wars actually ended).

The theater goers spilled out into the street. Mr. Mendonsa and his date Rita Petri went to a bar where they imbibed maybe a bit too much. They then returned to the celebration in Times Square.

The 20-year old Mendonsa had witnessed some horrible sights during his time in the navy. Most recently, he saw two Kamikaze planes destroy an American ship. Over 300 servicemen were killed. Many others were horribly wounded. Mr. Mendonsa assisted at the scene, and witnessed the American nurses tending to the injured.

As he walked through the square, Mr. Mendonsa caught sight of a woman in a nurse’s uniform. In an instant, he grabbed her, swooped her down, and kissed her. The moment was captured by photographer Alfred Eisenstaedt and his photo came to symbolize the relief and exuberance that our country felt at the end of World War II (though the continued glorification of Mr. Mendonsa’s non-consensual kiss is a bit creepy).

Although the photo itself became famous, for many years, the people in the photo were unknown. A number of men and women came forward, claiming that they were the ones in the picture. Only in recent years has the mystery been solved (probably).

It turns out that the woman in the photo (the kissee, if you will) was not a nurse; she was a 21-year old dental assistant from Queens named Greta Zimmer. Ms. Zimmer was also a refugee from Nazi-controlled Austria.

Margarete “Greta” Zimmer was born on June 5, 1924 in eastern Austria. Her parents, Max and Ida, and her two sisters were Jewish. In the years leading up to World War II, Austria drifted into the orbit of Nazi Germany, and conditions for Jews deteriorated. Then, in March 1938, Austrian Nazis took control of the government. In the same month, German troops occupied the country. Despite the overt anti-Semitism and the increasing danger, the Zimmer family tried to remain in their homeland.

By 1939, the family’s thinking had changed. The danger was mounting and opportunities to leave were disappearing. Max and Ida decided to send their daughters out of Austria, even if they had not secured passage for themselves. One daughter was sent to Palestine. Greta, then 15 years old, and her sister Jo came to the United States (lucky for them, given the strict quota laws in place at the time). The girls hoped that the separation from their parents would be only temporary.

Relatives in New York welcomed Greta and Jo to the United States. Greta volunteered as an air-raid warden during the war. She took classes at the Fashion Institute of Technology.

On the day of the photo, Greta Zimmer was working in a dental office near Times Square. All morning, they had been hearing rumors that the war had ended, and after lunch, she went over to Times Square, where she saw a lighted billboard declaring “V-J Day!” As for the kiss, Ms. Zimmer remembered it in a 2005 interview

Suddenly, I was grabbed by a sailor. It wasn’t that much of a kiss. It was more of a jubilant act that he didn’t have to go back. I found out later he was so happy that he didn’t have to go back to the Pacific where [he] had already been through the war. The reason he grabbed somebody dressed like a nurse [was because] he felt so very grateful to the nurses who took care of the wounded.

I’m not sure about the kiss… it was just somebody celebrating. It wasn’t a romantic event. It was just an event of “Thank God the war is over.”

After the war, Ms. Zimmer married Dr. Mischa Friedman and had two children. She studied and later worked at Hood College in Maryland. It wasn’t until years later that Ms. Zimmer saw the photo and recognized herself in it. She also eventually met George Mendonsa, who by then had married Rita Petri, his date on V-J Day.

Ms. Zimmer never saw her parents again. They died in Auschwitz. She also lost many other family members during the Holocaust. In all, of 181,000 Jews in Austria in 1938, approximately 65,000 were murdered by the Nazis. Most of the remainder fled the country. Only a few thousand Jews remained in Austria by the end of the war.

Greta Zimmer Friedman died on September 8, 2016. She was buried in Arlington National Cemetery, next to her late husband, who was a military veteran. She was 92. May her memory be a blessing.

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The Asylum Interview

by Jason Dzubow on September 8, 2016

in Asylum, Asylum Office, Asylum Seekers

After you file affirmatively for asylum, you will wait for months or years, and then finally, you will have an interview. What happens at this interview? And how do you prepare for it?

The interview is a (supposedly) non-confrontational conversation between the asylum applicant and an Asylum Officer. It takes place in an office; not a courtroom. You can bring an attorney and/or an interpreter with you to the interview. And sometimes, an Asylum Office supervisor or trainee is also present.

A typical Asylum Office interrogation chamber... er, interview room.

A typical Asylum Office interrogation chamber… er, interview room.

Before the interview, when you arrives at the Asylum Office, you need to check in. This consists of giving the interview notice to a receptionist, who will take your photo and fingerprints, and give you a paper to read. The paper reminds you of your obligation to tell the truth and lets you know that you can bring an interpreter with you to the interview. Do not sign the paper—you will sign it once you are with the Asylum Officer in the interview room.

The interview itself is divided into a few parts.

First, the Asylum Officer will explain and administer the oath, during which you will promise to tell the truth. If you have an interpreter, the Asylum Officer will also make her take an oath. For people using an interpreter, the Asylum Officer will call another interpreter on the phone, and this person will monitor the accuracy of the interpretation. If the interpreter you bring makes a mistake, the telephone interpreter will correct it (remember to speak loudly and clearly, so the person on the phone can hear you).

After the oath, the Officer will review your form I-589 and give you an opportunity to make any corrections or updates. It is important to review the form yourself before you go to the interview, so you are ready to make corrections and updates when the time comes.

Once the form is corrected, you will reach the heart of the interview, where the Officer will ask about why you need asylum in the United States. A few points to keep in mind here: First, if the Officer asks you a question that you do not understand, do not answer the question. Instead, ask for clarification. The Officer is typing what you say, thinking about his next question, and reading your file, all at the same time, so he may well ask you a poorly-worded question. It is not a problem—and indeed, it is common—for an applicant to ask the Officer to clarify a question. Do not be afraid to do that. Second, if you do not know the answer to a question, or do not remember the answer, do not guess. Just say, “I don’t know” or “I don’t remember.” If you guess, and your answer is different from your documents (or different from other information that the Asylum Officer has), it may cause the Asylum Officer to believe you are not telling the truth, which could result in your case being denied. Obviously, it is better if you know and remember the facts of your case, so make sure to review your statement before the interview.

There are certain questions that the Officers usually ask, and you should be prepared for them: Why do you fear returning to your country? If you or a family member have been harmed in the past, describe what happened. If you face harm from a terrorist group or other non-governmental actor, can your home government protect you? Is there somewhere in your country where you can live safely? If you are a member of a political party, the Officer might test your knowledge of the party by asking about its leaders or history. If you are seeking asylum based on religious persecution, the Officer might ask you about the tenets of your religion. For people who served in the military or police, the Officer might ask about the nature of your service, and whether you might have engaged in persecution of others. If you ever had any interactions with a terrorist or insurgent group, the Officer will ask about that. The Officer will also want to know about other countries you have lived in, or traveled through. If you left your country and then returned, the Officer may want to know why you returned home then, but do not want to go back now. Also, the Officer will have a copy of any prior visa applications (possibly including applications made to other countries or the United Nations) or any other documentation you submitted in an immigration matter, so you should be prepared for questions about prior applications. Of course, depending on your case, the questions will vary, and that is why it is so important to review your case before the interview and think about the types of issues that might come up (and if you have a lawyer, she should think about and work through these issues with you).

Usually near the end of the interview, the Officer will ask you the “bar questions,” which everyone must answer: Have you committed a crime or been arrested? Are you a terrorist? Did you ever have military training? etc.

Sometimes at the end of the interview, the Officer will ask whether you have anything else to add. If the Officer covered all the major issues, I recommend to my clients that they simply thank the officer and end the interview. Some people want to give a long statement about their desperate situation or their family members’ problems. In my opinion, such statements are not helpful, and could end up causing more problems than they solve.

Finally, the Officer will instruct you about the next steps–the Officer will not give you a decision on the day of the interview. Either you will be required to return to the Asylum Office to pick up your decision (usually in two weeks), or they will send the decision by mail (which could take days, months or years). I always caution my clients, even if the Officer tells you to return in two weeks, it is very common for pick-up decisions to be canceled and turned into mail-out decisions. In other words, until you have the decision in your hand, you have to remain patient, and you cannot make any plans.

The whole interview process can take an hour, but more often, it takes a few hours. On occasion, it takes many hours, and sometimes the Officer will ask you to return another day for more questions.

So what do you do to prepare for the interview? First, make sure you have submitted all your documents and evidence in advance, according to the rules of your local Asylum Office (in my local office—Virginia—for example, we are required to submit all documents at least one week in advance, but local rules may vary). Second, review your statement and evidence prior to the interview. Think about what issues may come up, and how you want to respond to those issues. Bring with you to the interview your passport(s) and any original documents you have. If you have dependent family members as part of your application, they need to attend the interview too (though usually they will not be asked many questions by the Officer). Dress in a respectful manner. Be on time or early.

The interview is a key part of your asylum case. If you know what to expect and are prepared to address the issues–especially any difficult issues–you will greatly improve your chances for a successful outcome.

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If you’re reading this blog, you’re probably already familiar with the form I-589, Application for Asylum and Withholding of Removal. Whether your case is in Immigration Court or the Asylum Office, this is the form that you use to apply for asylum, withholding of removal under INA § 241(b)(3), and relief under the United Nations Convention Against Torture.

"You should have listed all your names on the immigration form, Superman. Or should I say, Clark Kent, Kal El, or Man of Steel?"

“You should have listed all your names on the immigration form, Superman. Or should I say, Clark Kent, Kal El, or Man of Steel?”

At the beginning of the asylum interview or the court case, the applicant has an opportunity to make corrections to the I-589. It’s not a problem to make corrections, and generally, correcting errors on the original form does not reduce the likelihood that the application will be granted. In the worst case, the applicant will need to explain the mistake(s), but even this is fairly rare.

You might think that the most important questions on the I-589 are the ones on page 5 related to why you need asylum. It makes sense, since that is the whole point of the form. But, au contraire, in asylum world, things that make sense are rarely the correct answer. The questions about asylum are generally easy to answer on the form, and you have ample opportunity to elaborate on your answer in an affidavit or at the interview.

So what is the most important question on the form? It’s the question that appears on page 1, near the very beginning of the form, in Part A.I., question 6: “What other names have you used (include maiden name and aliases)?” What’s so important about this question, you ask. I will endeavor to explain. But first, a bit of background.

Every asylum applicant must undergo a background check. The check is a bit of a mystery, but it involves a biometrics check and a name check. The background check also involves multiple data bases, and it can be quite time consuming–some people wait years for the completion of their checks. Theoretically–and hopefully–the background check will be completed before the interview or the court case. That way, the applicant can receive a decision shortly after being interviewed. If the check is not complete, or if new information arises at the interview and the check must be augmented, the case will be delayed–possibly for a very long time.

In my office, for example, we have dozens of clients who have been interviewed, but are still waiting for decisions in their cases. Some have been waiting for weeks or months; the longest delayed applicants have been waiting over two years! Most of these delays seem to be because the security background checks are not complete. For people who are single, or whose spouse and children are with them in the United States, the wait may be tolerable (stressful and unpleasant, but tolerable). For people who are separated from their spouse and children, the wait is horrific. How can a mother or father be apart from small children for months or years? Yet this is what many applicants are enduring today.

Which brings us back to the question about “other names used.” If you fail to include every name you have used in your life, the Asylum Office may have to start the security background check all over again for any names that you add to the form during your asylum interview or your court case. So while it is not a problem to correct this question, adding a new name to the form could cause months (or more) of delay. For this reason, it is important to include any and all names you have used when you first submit the form.

Your name on the I-589 (Part A.I., questions 3, 4, and 5) is generally your name as it appears on your passport. So what “other names” should be listed on the form? You should include the name on your U.S. visa, including the notorious “FNU” or “first name unknown,” which often appears on US visas for people who have only one name. If you have a maiden name, include that. Also, list any different spellings of your name that you (or others) have used. If you have nicknames, pseudonyms or aliases, list those too. Of course, if you have ever changed your name, list all previous names you have used. If you ever list your name as “son of” or “daughter of,” include that. Finally, different countries and cultures have different naming conventions. Sometimes, a person’s name is the given name, followed by the father and grandfather’s name, or a tribal name. You should list all iterations of your name.

It is important to answer all questions on the I-589 form as completely and as accurately as possible. But the question about “other names used” is particularly important. If you forget to include all the names you have used, it could cause additional long delays in your case. To paraphrase the immortal Dr. Seuss, “Be your name Buxbaum or Bixby or Bray, or Mordecai Ali Van Allen O’Shea, make sure to include all your names on the I-589 form. Then you’ll be off to great places. So, get on your way!”

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Donald Trump has repeatedly promised to bar Muslim foreigners from the United States. More recently, he’s called for “extreme vetting” of such people. Given his pronouncements, it’s not surprising that Muslim immigrants and asylum seekers are worried. But fear not – there is an easy solution for people affected by the ban: Convert to Judaism.

When Trumpette first converted, we were kvelling. Now, we're verbissen.

When Trumpette first converted, we were kvelling. Now, we’re verbissen.

“What!!??! How can I change my religion? I don’t know anything about Judaism,” you say. Do not fret; I am here to help. I will explain to you how to be Jewish. It’s really not that hard. Jews and Muslims are already a lot alike. We both hate pork and love hummus. We’re both perpetuating the War on Christmas by wishing others, “Happy holidays.” And we both really want to own Jerusalem. See, we’re practically cousins.

Besides, converting to Judaism is the perfect cover. Donald Trump’s own daughter converted, and he hasn’t tried to ban her from anything.

So how do you “pass” as Jewish?

The first thing to know is that a Jewish person never answers a question. Instead, he responds with a question of his own, often followed by a complaint. So for example, if someone asks you, “How are you doing today?,” you don’t say, “I’m fine.” Instead, you say something like, “How should I be doing? What with my bad stomach. My fakakta doctor prescribed me some pills, but they do bubkis.” Get it? Let’s try an example in the immigration context. Here’s a common question that you might encounter:

Immigration Officer: “How many children do you have?”

Non-Jewish Answer: “Three.”

Jewish Answer: “How should I know? They never call, they never write. My youngest is running around with some shiksa. And my oldest! Don’t even get me started. I told her, ‘Go to medical school, like your cousin Herbie,’ but what does she do? Majors in Liberal Arts. Feh! Her father and I spend $50,000 a year on college so she can work as a barista. Oy, what tsuress. Just thinking about it, I’m verklempt already.

You see – It’s easy. Here’s another one. Let’s say that someone asks you a question that you want to avoid answering. One way to do that is by minimizing the importance of the question, and then making the questioner feel guilty about asking it. We Jews do that by taking the most important word in the question, replacing the first letter in the word with “schm” and then repeating it back. Often, this is followed by a reference to the Nazis. Here’s an example in the immigration context to help clarify what I mean:

Immigration Officer: “Hello sir, may I please see your visa?”

Non-Jewish Answer: “Here is my visa.”

Jewish Answer: “Visa, schmisa! Do you think I’ve been sitting on a plane squished up like a sardine for the last 12 hours just so some Himmler-wanna-be can ask for my papers? My family didn’t survive the Holocaust, not to mention the pogroms, just to have some shmendrick treat me like a gonif. Next thing you know, you’ll be deporting me to a camp. The whole thing makes me want to plotz.”

At that point, your interrogator will likely let you pass through customs just to get rid of you, which is another advantage of converting to Judaism.

OK, I think you’ve got it. But here’s one last example. This one’s a bit more advanced, so pay attention. If you can master it, no one will ever question your newfound Judaism. In English, most sentences are constructed with a noun, followed by a verb. We Jews often reverse that construction. So we wouldn’t say, “She is a fast driver.” Instead, we might say, “Fast, she drives.” But typically, we’d try to be a bit more colorful: “Fast, shmast. Like Marrio Andretti, she drives.” And here it is in the immigration context:

Immigration Officer: “The fee for your green card is $1,070.”

Non-Jewish Answer: “Here is $1,070.”

Jewish Answer: “Nu? One thousand and seventy?! What am I, a Rothschild? Why don’t you take my first born son while your at it. Maybe you can get some schlemiel to pony up that kind of money, but not me. Anyway, gelt like this, I don’t have. Maybe the big machers can afford your fees, but not us little pishers. Now, be a mensch and hand to me your brochures about moving to Canada?”

So that’s it. Look, it isn’t pretty to have to convert (or pretend to convert) to survive. We Jews have done it before (remember the Spanish Inquisition and the crypto-Jews?), but I suppose it beats the alternative. Anyway, in four years, when Michelle Obama becomes president, you can always convert back.

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This post is by my esteemed law partner Todd Pilcher. Todd’s practice focuses on asylum and family-based immigration. Over the course of his career, Todd has represented hundreds of immigrants and asylum seekers from all over the world, with a particular focus on asylum seekers from Central Asia and Latin America. He is also an adjunct professor of asylum and refugee law at the George Washington University Law School. Prior to joining Dzubow & Pilcher, Todd worked for many years as a senior managing attorney at Whitman-Walker Health Legal Services in Washington, DC.

Todd Pilcher is waiting for a coup attempt at Dzubow & Pilcher, so he has an excuse to clean house.

Todd Pilcher is waiting for a coup attempt at Dzubow & Pilcher, so he has an excuse to clean house.

Until the recent coup d’état attempt in Turkey on July 15, 2016, most people in the United States–including journalists and human rights advocates–had never heard about the Gulen Movement or its founder Fethullah Gulen. That all changed after the Turkish government blamed the coup effort on Mr. Gulen and his followers and demanded his extradition from the U.S., where he has lived in exile since 1999. Since then, American and international press agencies have published numerous articles about this man and his movement.

While people in the West may be surprised that they only recently learned about “one of the world’s most important Muslim figures” and his movement promoting secular government, democracy, and religious tolerance, they should not be surprised that some governments in Central Asia and Eastern Europe have persecuted Mr. Gulen’s followers for many years.

I am an attorney specializing in political asylum. In my practice, I have worked with several Gulen movement followers who have fled horrific government abuse in their home countries and applied for asylum in the United States. In the wake of the failed coup and the vicious crackdown against followers in Turkey and throughout Central Asia, I expect to assist more such asylum seekers in the coming months.

Gulen movement supporters who have been persecuted or who fear persecution in their home country due to an association with the movement should qualify for a grant of asylum in the U.S. on the basis of both religion and political opinion. Even those who are not closely associated with the movement, but who fear persecution because the government falsely accuses them of involvement, should have strong cases for asylum.

Any religious movement, such as the Gulen movement, that promotes the ideals of secular governance, nonviolence, religious and cultural pluralism, and respect for science alongside its spiritual teachings should be a welcome element in Central Asia and Russia. Unfortunately, many governments see the Gulen movement as a mortal threat to their dominance. In Turkey, Russia, Uzbekistan, and Tajikistan, Gulenist schools have been shut down. In many instances, followers have been subjected to harassment, detention, and torture. We have learned from clients and press reports that in Russia, government security agents have routinely raided Gulen movement meetings in private residences, confiscated reading materials, and arrested the participants. Once in detention, the Gulen movement followers undergo interrogations and severe beatings. The women are frequently raped and movement leaders are sentenced to long prison terms or killed outright. The treatment of Gulen movement followers in Uzbekistan is at least as horrific due to the country’s chronic conflict with Turkey and the consistently unhinged behavior of the country’s dictator, Islam Karimov, and his henchmen.

For the present, international focus on the crackdown against Gulen movement followers remains on Turkey. But the mistreatment of Gulen followers will also likely rise dramatically throughout the region and beyond as dictatorial governments seek to confirm their paranoid suspicions and keep their prisons filled with perceived opponents. The U.S. and other countries that respect their moral and international legal obligations to protect refugees will continue to face the dilemma of speaking out forcefully against the mistreatment of Gulen movement followers while also trying to maintain important strategic relationships with the countries that have ramped up their persecution.

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This August, 10 athletes will compete in the Olympic games not as representatives of their countries of citizenship, but as refugees. For the first time in the history of the Olympics, there will be a “Refugee Team,” composed of individuals from four countries: Democratic Republic of the Congo, Ethiopia, South Sudan, and Syria. The athletes will participate in a variety of sports, including swimming, track and field, and judo.

Refugee athletes are expected to do well in such sports as "Completing Endless Forms" (pictured) and "Waiting Forever In Line."

Refugee athletes are expected to do well in such sports as “Completing Endless Forms” (pictured) and “Waiting Forever In Line.”

Here are the stories of a few of these inspiring Olympians:

James Nyang Chiengjiek (age: 28; country of origin: South Sudan; sport: 400 meters) – James is from Bentiu, South Sudan. His father was a soldier who died in 1999 during the war. When he was a young boy he took care of cattle. He escaped from South Sudan when the war broke out, as he risked conscription into the army to participate in the war as a child soldier. James arrived in Kenya in 2002 and stayed in a UNHCR-supported refugee camp. He attended school and started running there. He was selected to train at the Tegla Loroupe Peace Foundation in 2013, and has been there ever since (four others on the Refugee Team also train at the TLPF).

Yusra Mardini (age: 18; country of origin: Syria; sport: 100 meter freestyle) – Prior to the war in Syria, Yusra was a competitive swimmer who represented her country in international competitions. As the war intensified, Yusra and her sister left Damascus in early August 2015 and reached Berlin in September 2015. To get there, they had to cross the Aegean in a small boat. When the engine died, Yusra and a few others—the only swimmers on board—jumped into the water and pushed the boat for 3½ hours to shore. Since she reached Germany, Yusra has been training at the club Wasserfreunde Spandau 04 e.V. which is a partner of the Elite Schools of Sport in Berlin.

Yolande Bukasa Mabika (age: 28; country of origin: Democratic Republic of the Congo; sport: Judo) – Yolande is originally from Bukavu, the area worst affected by the DRC civil war from 1998 to 2003. During the war, she was separated from her parents and taken to a children’s home. There, she took up Judo, which the government encouraged as a way to give structure to the lives or orphans. As a professional Judoka, she represented the Democratic Republic of the Congo in international competitions. After years of difficult training conditions, she decided to seek asylum in Brazil during the World Judo Championships in Rio in 2013. She currently trains at the Instituto Reação in Rio de Janeiro.

Popole Misenga (age 24; country of origin: Democratic Republic of the Congo; sport: Judo) – Like his Judoka teammate, Yolande Bukasa Mabika, Popole is originally from Bukavu in the DRC. His mother was murdered when he was only six years old. Afterward, he wandered in a rain forest for a week before he was rescued. As a professional Judoka, he represented the Democratic Republic of the Congo in international competitions. Along with Yolande, Popole sought asylum in Brazil during the World Judo Championships in 2013. He currently trains at the Instituto Reação in Rio de Janeiro.

Yonas Kinde (age 36; country of origin: Ethiopia; sport: Marathon) – Yonas left Ethiopia due to political problems. He has been under international protection in Luxembourg since October 2013. He has competed in many marathons and reached the qualifying standards for Rio during the Frankfurt Marathon in October 2015. He currently trains at the national school of physical education and sports in Luxembourg.

Rose Nathike Lokonyen (age 23; country of origin: South Sudan; sport: 800 meters) – After her community was burned by armed men, ten-year-old Rose and her family left South Sudan and arrived in Kakuma refugee camp in 2002. Her parents returned to South Sudan in 2008 but her siblings remained in Kakuma refugee camp. During her time at school, she participated in many barefoot running competitions and in 2015 she participated in a 10 km run in Kakuma organized by the Tegla Loroupe Foundation. She has been training with the foundation ever since.

The Refugee Team is a part of a broader effort on the part of the International Olympic Committee (“IOC”) to assist and bring attention to refugees. As IOC President Thomas Bach has said, the Refugee Team “will be a symbol of hope for all the refugees in our world, and will make the world better aware of the magnitude of this crisis. It is also a signal to the international community that refugees are our fellow human beings and are an enrichment to society.” It’s an important role for these young athletes, and we certainly wish them the best at the Olympic Games and beyond.

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My friend and office mate Sheryl Winarick is an immigration attorney, advocate and entrepreneur based in Washington, DC and Austin, TX. Before starting her own immigration law practice in 2007, she spent eight years working for national non-profit organizations–Catholic Legal Immigration Network and the Justice For Our Neighbors program of the United Methodist Committee on Relief. She is currently in Residence at the TED office in New York and serves on HIAS’ Public Policy Committee. Here, she writes about her experience as an attorney-volunteer assisting refugee women and children at the Southern border:

Sheryl Winarick, do-gooder.

Sheryl Winarick, do-gooder.

Stories of the European refugee crisis continue to flood the headlines, but mass media seems to forget we have a refugee crisis in America, too. Since the beginning of fiscal year 2014, over 120,000 unaccompanied children and an additional 120,000 people in family units–mostly young mothers with children–have arrived at the U.S. border seeking protection from violence in Central America.

In March, I spent a week volunteering for the Refugee and Immigrant Center for Education and Legal Services (RAICES)–one of several partner organizations that comprise the CARA Pro Bono Project. I was assigned to represent women and children before the immigration court in San Antonio, Texas. Karnes County Residential Center, operated by the U.S. Department of Homeland Security, houses these refugees in harsh conditions while they wait for a judge to determine their fate. Their stories are tragic, as is the reality that most of these desperate human beings do not qualify for protection under U.S. law, despite the well-documented probability that they will face severe violence and harm if they are returned to their countries of origin.

General violence, extortion, corruption and impunity are endemic in countries like Honduras and El Salvador. However, in order to qualify for political asylum, an applicant must demonstrate that the persecution or harm she fears is targeted against her specifically “on account of” her race, religion, nationality, political opinion, or membership in a particular social group (PSG). Usually, PSG is the only hope, and eligibility hinges on a combination of the facts unique to each case, access to representation, and the appointed judge’s interpretation of PSG (which is not strictly defined).

As I sat in the courtroom while my clients spoke to a judge via video conference from the Karnes detention center, I imagined how they must feel and the thoughts that might race through their minds. Karnes is about 60 miles southeast of the court in San Antonio, so it made more sense for other RAICES volunteers to prepare them for court. That means they had never met me in person, and here I was representing them in what could be the most important hearing of their life.

How could they comprehend who I am, why I am there, and how I could know best what to say to the judge? Imagine, these desperate women, completely dependent on the help of strangers speaking a strange language in a strange land. They don’t understand our legal system, and how can they possibly trust institutions of justice here in the U.S. when parallel institutions in their own countries are so corrupt? To make matters worse, the first thing we do to them (and their 3, 4, 5-year-old kids) is lock them up in detention facilities. The only truth they know is that they had no choice but to leave home if they wanted to live and to give their children a fair shot at life.

There are no easy answers. My hope is for our elected officials and for individuals like you and me to confront our collective reality with courage and compassion. People all over the world are wrestling with these very real issues daily; some of us from the comfort of our homes and others from jail cells in unfamiliar places. We must seek solutions for those in need and fight for rights and dignity for all people.

For a minute, close your eyes and imagine if this was your story, simply to be born into a hostile environment. Say a prayer for those in need, definitely give thanks for the freedom and relative comforts you enjoy, and do whatever you can to make a positive impact in this world we share.

This article originally appeared on the HIAS website.

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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.

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