Answering the Impossible Question

by Jason Dzubow on March 23, 2017

Possibly the most common question I hear at initial consultations with asylum seekers is, “What are the chances that I will win my case?” It’s a reasonable question. People want to know the likelihood of success before they start any endeavor. The problem is, it’s impossible to answer this question. Why is that?

The other Impossible Question: “Does this dress make me look fat?”

One reason is mathematical. Probabilities are tricky to calculate and even more tricky to understand. Also, it is very hard to apply probabilities in a meaningful way to a single event. What does it mean, for example, when the weather report shows a 30% chance of rain? If you run 100 computer simulations of the weather, it will rain 30 times. But in the real world, it will either rain or it won’t. The problem is that we do not have complete information to start with, and that there are too many variables to predict precisely how the weather will evolve over time. Without sufficient information, we have to approximate, and we are left with a range of possible outcomes and probabilities. As Niels Bohr observed, “Prediction is very difficult, especially if it’s about the future.”

Another difficulty is that predicting case outcomes involves human beings, and we are a notoriously capricious species. At the outset of a case, the lawyer may not know whether the client can get needed evidence, or whether she can remember her testimony, or how a witness will behave. Also, the lawyer may not know who the fact finder will be (with Immigration Court cases, we usually know in advance; for Asylum Office cases, we never know until the day of the interview). Also, what if the fact finder is in a particularly good or bad mood on the day of the case? Or what if she is hungry during the case (one Israeli study famously correlated favorable parole decisions to whether the judge had recently eaten lunch!)? These “human factors” can greatly affect the decision, and few of them can be known in advance, which again makes predicting difficult.

That’s not to say we know nothing about the likelihood of success. For Immigration Court cases, there is data available about the grant rates of individual Judges. Also, there is some data available about Asylum Office grant rates. Of course, all of this is very general and does not necessarily bear much relationship to the likely outcome in a given individual’s case, but I suppose it’s better than nothing.

As a lawyer, once you get a sense for asylum cases, you can at least give the client some idea about the outcome. I can tell a strong case from a weak case, for example. If the client has a lot of credible evidence, has suffered past persecution on account of a protected ground, and faces some likelihood of future harm, the client has a strong case. The most I will say to such a prospective client is that, “If the adjudicator believes that you are telling the truth, you should win your case.” I might also say that since the corroborating evidence is strong, it is likely that the adjudicator will believe the claim.

I do think there is a basic human desire behind the question about the chances for success, and that is the desire for certainty. Asylum cases now take years, and it is very difficult to live your life for so long under the threat of deportation. When the clients ask about the likelihood of success, I know part of what they want is reassurance. Even if the case is weak, they want to feel like they have a chance. They want to feel that what they are building in the U.S. while they wait for a decision will not all be lost. How, then, do we balance the need for certainty with providing an honest evaluation of the case?

For my clients, I try to give them both honesty and hope. In the beginning, I give the client my honest assessment of the case and the likelihood of success. Knowing my assessment (whether it is good or bad), if the client decides to go forward, my focus shifts to creating the strongest case possible with the facts and evidence available, and to helping reassure the clients so they feel some hope. I try to encourage the client to do what is within their power to make the case better: Gather evidence, talk to witnesses, find experts, etc. At least this helps empower the client a bit, and it gives them some agency over their case outcome.

Different lawyers do things differently, and there are probably many “right” ways to balance realism and hope. There are also wrong ways. Any lawyer who “guarantees” you will win an asylum case is a lawyer you should avoid. No lawyer can guarantee a win because we do not make the decisions–the government does. Also, lawyers who make dubious promises (“I am good friends with your Judge, so I can get you a quicker hearing date”) are probably lying to get your business. Be careful, and remember that offers that seem too good to be true probably are. For all its flaws, the American immigration system is largely free from corruption. Lawyers don’t have special relationships with adjudicators that can change outcomes or speed adjudication. When a lawyer oversells hope at the expense of realism, you are safer to seek a different attorney; one who is more interested in telling the truth than in selling you his services.

So when a prospective client asks me the chances for success, I’ll try to give the best evaluation I can, so that the person can make an informed choice about whether to file an asylum case. Once the case is started, I will try to address weakness and gather evidence to maximize the chances for a win. I will also try to encourage the client, so that she has some hope during the long wait.

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Following the December 2, 2015 terrorist attack in San Bernardino, California, where the husband-and-wife perpetrators had purportedly become radicalized via the internet, Congress requested that the Department of Homeland Security (“DHS”) take steps to better investigate the social media accounts of immigrant applicants (the husband was an American-born U.S. citizen of Pakistani decent; his wife was a lawful permanent resident from Pakistan). In response, DHS established a task force and several pilot programs to expand social media screening of people seeking immigration benefits and U.S. visas. DHS also approved creation of a Social Media Center of Excellence, which would conduct social media background checks for the various DHS departments. The Center of Excellence would “set standards for social media use in relevant DHS operations while ensuring privacy and civil rights and civil liberties protections.”

The director of the Center of Excellence, Bill S. Preston, Esquire.

Last month, the DHS Office of Inspector General released a (clumsily) redacted report detailing the efficacy of DHS’s efforts and making suggestions. Due to the incomplete redaction job, it seems likely that the pilot program focused on refugees and perhaps asylum seekers, but the plan is to expand the program to cover all types of immigration benefits.

The goal of the pilot program was to help develop policies and processes for the standardized use of social media department-wide. “USCIS had previously used social media in a limited capacity, but had no experience using it as a large-scale screening tool.” The pilot program relied on manual and automated searches of social media accounts to “determine whether useful information for adjudicating refugee applications could be obtained.” It seems that the ability of DHS to investigate social media accounts was limited by technology: At the time the pilot program was launched in 2016, “neither the private sector nor the U.S. Government possessed the capabilities for large-scale social media screening.”

In one portion of the pilot program, applicants were asked to “voluntarily” give their social media user names. USCIS then “assessed identified accounts to determine whether the refugees were linked to derogatory social media information that could impact their eligibility for immigration benefits or admissibility into the United States.”

DHS has also been looking into social media, email, and other computer files of people entering or leaving the United States, including U.S. citizens, and this inquiry is far from voluntary. There have been numerous recent reports of DHS Customs and Border Protection (“CBP”) agents demanding passwords for cell phones and computers. The number of people subject to such searches increased significantly at the end of the Obama Administration, and seems to be further increasing under President Trump. Anecdotal evidence suggests that the large majority of people targeted for these searches are Muslim.

All this means that DHS may be looking at your accounts on Facebook, Twitter, LinkedIn, Instagram, etc. to determine whether you pose a threat and (possibly) to assess your credibility. They might also gain access to your email and other information stored on your computer or your cell phone. This data could then be used to evaluate your eligibility for immigration benefits, including asylum.

On the one hand, it seems reasonable that DHS would want to look into social media and other on-line material. After all, it is well-known that terrorists rely on the internet to spread their messages, and as DHS notes, “As the threat landscape changes, so does CBP.” Also, most immigration benefits are discretionary, meaning that even if you qualify for them, the U.S. government can deny them in the exercise of discretion. Therefore, if DHS “requests” certain information as part of the application process, and the applicant fails to provide it, DHS can deny the benefit as a matter of discretion.

On the other hand, the inter-connectivity of the on-line world could yield evidence of relationships that do not actually exists. For example, one study estimates that Facebook users (all 1.6 billion of them) are connected to each other by 3.57 degrees of separation. That means there are–on average–only 3.57 people between you and Osama bin Laden (assuming he still maintains his Facebook page). But of course, it is worse than that, since there are many terrorist suspects on Facebook, not just one (Osama bin Laden). So if you are from a terrorist-producing country, it’s likely that suspected terrorists are separated from you by less than 3.57 degrees of separation. Presumably, DHS would take these metrics into account when reviewing on-line data, but you can see the problem–your on-line profile may indicate you have a relationship with someone with whom you have no relationship at all.

So what can you do to protect yourself?

First, don’t be paranoid. It’s nothing new for DHS or other government agencies to search your on-line profile. Since everything posted on-line is, at least in a sense, public, you should be discrete about what you post, and you should be aware that anyone–including the U.S. government–could be reading it.

What’s more problematic is when CBP seizes electronic devices at the border and then reviews emails and other confidential information. This is extremely intrusive and an invasion of privacy. There is also an argument that it violates the Fourth Amendment right to be free of unlawful searches, but generally, people coming and gong from the U.S. have less protection than people in the interior (though I imagine that as CBP steps up the practice, we will see lawsuits that further define Fourth Amendment rights at the border). Knowing that you could be subject to such a search at least enables you to prepare yourself. Don’t travel with devices if you don’t want them searched. Be careful what you store on your devices and in the cloud.

Also, if you think you have problematic on-line relationships or derogatory on-line information, be prepared to explain yourself and present evidence if the issue comes up.

On-line information can affect an asylum or immigration case in more subtle ways. For example, if you state in your application that you attended a protest on a particular date, make sure you got the date correct–DHS may be able to find out the date of the protest, and if your account of events does not match the on-line information, it could affect your credibility. The same is true for more personal information. For instance, if your asylum application indicates you attended high school from 1984 to 1987, that should match any available information on the internet. Mostly, this simply requires that you take care to accurately complete your immigration forms, so that there are no inconsistencies with data available on-line.

Again, it’s not really news that DHS is reviewing social media and other on-line information. It does appear that such practices will become more common, but as long as applicants are aware of what is happening, they can prepare for it.

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Earlier this week, President Trump issued a new Executive Order (“EO”) to replace one of his prior orders, which was largely blocked by the federal courts. The new EO, Protecting the Nation from Foreign Terrorist Entry into the United States, temporarily bans certain nationals of six majority-Muslim countries from entering the United States, suspends the U.S. refugee program for 120 days, and reduces the total number of refugees that the U.S. will resettle in FY 2017. Whether the new ban can withstand court scrutiny, and how it will ultimately effect who can come to our country, remains to be seen.

“My favorite four-letter word.”

For those foreigners already in the United States, the new ban has little legal effect. The immigration status of permanent residents, refugees, asylees, and asylum seekers remains essentially untouched. One possible exception is for family members of asylees and refugees who are hoping to come to the U.S. on a Refugee/Asylee Relative Petition (form I-730). Such relatives from the six “banned” nations–Iran, Libya, Somalia, Sudan, Syria, and Yemen–may be ineligible for a visa for a 90-day period. However, even this is unclear, as the EO provides a number of exceptions for nationals of banned countries, and such relatives may be entitled to an exception (depending on how you read the EO).

So for non-citizens in the U.S., including those from banned countries, the EO has almost no effect on their legal status here. That’s not to say that the EO has no effect–it certainly does. But that effect relates to the message the EO sends and the psychological damage it inflicts on Muslims and on non-citizens. Indeed, for this population, the effects of the anti-terrorism EO are similar to the effects of an actual terrorist attack in certain key ways.

Like a terrorist attack, the number of people directly impacted by the EO is much smaller than the number of people terrorized by it. The new EO is very narrowly tailored, so much so that it almost does not make sense. For example, the Administration claims that vetting for the six banned countries is insufficient. Yet the order allows nationals of those countries who already have visas to come to the United States. If there is a problem with the vetting, shouldn’t all the “improperly” vetted visas be revoked? Presumably, the Administration wants to avoid another humiliating defeat in court, but the limited scope of the EO seems to undercut the very rationale for its existence.

On the other hand, if the purpose of the EO is not really to block people from coming here, but rather to frighten people who are already here (Muslim Americans and non-citizens), the limited legal effect is less of a concern. As long as the order stands up in court–and even if it doesn’t–Mr. Trump has sent a strong message to the intended audience (really, there are two intended audiences: Mr. Trump’s supporters who want to see him fighting against “the others” and “the others” themselves, who feel targeted and excluded by the Administration’s policies). In this sense, the EO mirrors a classic terrorist tactic–limited impact (because you have insufficient resources to have a wider impact) with maximum effect (everyone in the targeted population is frightened).

And make no mistake, the EOs and the accompanying rhetoric are affecting their intended targets. Reports indicate that non-citizens and their children are under great stress due to President Trump’s words and policies. This stress can have harmful and life-long effects, especially on children. Muslims, including American citizens, have been subject to a barrage of bigoted statements from the President and his surrogates, and they are also suffering from similar types of stress. Some refugees are fleeing the United States, which they now view as unsafe, for Canada. So while the legal effect of the EOs may be small, the harm is very real, and very damaging.

Mr. Trump’s EOs are similar to terrorism in another important way: They help create a vicious cycle. Terrorists rarely have the power to conquer territory. Instead, the purpose of their attacks is to draw a response. Unless the response is careful and precise (a rarity), it can cause further alienation and anger, thus driving more people into the terrorists’ camp–a vicious cycle. In the case of the EOs, they help justify the narrative that groups like ISIS have been peddling (that the United States is at war with Islam). They also frighten and alienate people living in our country, particularly Muslims and non-citizens. Since alienated and frightened people are more likely to embrace extremism, the EOs are a type of self-fulfilling prophesy: EOs push people towards extremism, extremism justifies more EOs. It’s a vicious cycle analogous to the one created by terrorism.

Finally, the EOs do not exist in a vacuum. They are part of a larger campaign to demonize foreigners and Muslims. The whole effort of the Trump Administration towards such people is irresponsible and dangerous. It puts our country at greater risk by encouraging extremism and discouraging cooperation. But unfortunately, this Administration has proved again and again that it will not allow facts to get in the way of ideology, or sound policy advice to contradict prejudice. The new Executive Order is just the latest example of the misguided course our country is now taking. We are all less safe because of it.

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A New Type of EAD Denial

by Jason Dzubow on March 3, 2017

This article is by Ruth Dickey, a brilliant and dashing associate at Dzubow & Picher, PLLC.

During the latter part of the Obama Administration, it became common for DHS/ICE attorneys (the prosecutors) in Immigration Court to offer “prosecutorial discretion” or PD. If the applicant accepted PD and the Immigration Judge agreed, the case would be administratively closed. Basically, it would be taken off the court’s calendar and placed into a permanently pending status. Applicants with weak cases might take PD rather than risk losing their cases with the Judge and getting ordered deported.

Perhaps USCIS has a case of the Gremlins. First, they sabotaged B-17’s and P-52’s; now, they’re messing with I-765’s.

Under President Obama, PD was typically offered to people who were not enforcement priorities for ICE – that is, the person had positive factors, like long-term ties to the United States and did not have any disqualifying criminal issues. During the Obama Administration, ICE published a list of factors that prosecutors would consider when a person asked for PD. According to recent data, since 2013, almost 67,000 court cases have been administratively closed based on PD. This represents about 10% of all case closings in Immigration Court.

If your asylum case was administratively closed by an Immigration Judge, and if you had your employment authorization document (“EAD”) based on a pending asylum case, you remain eligible to renew the EAD for as long as the case is in administrative closure (theoretically, forever). This is because the case is technically still pending, and thus still “alive” for purposes of renewing the EAD.

Since Donald Trump came into office, DHS has largely done away with PD, and so we can expect to see far fewer cases administratively closed in the future. However, our office has several asylum clients whose cases were already administratively closed. They have ongoing needs, such as the need for an EAD.

One of my clients in this situation is an Unaccompanied Alien Child or UAC. UACs are people who crossed the border as minors without a parent or guardian. Such people are given additional procedural protections. For example, UACs have the right to present their asylum claims to an Asylum Office, which is a less intimidating environment than an Immigration Court. In my case, an Immigration Judge administratively closed my client’s case so she could file her case with the Asylum Office. Before the case was closed, I “lodged” her asylum application with the Court to start her “asylum clock,” which then allows her to file for an EAD (after a 150-day waiting period).

When the time came, our office prepared the EAD application (form I-765) and mailed it. Last week, we received a response denying the EAD. In its denial, USCIS referred to the applicable regulation, 8 CFR 208.7(a)(1), claiming that it said:

An applicant whose asylum application has been denied or closed by an asylum officer or by an immigration judge within the 150-day [clock] period shall not be eligible to apply for employment authorization.

But this is not what the regulation says. USCIS inserted the phrase “or closed” into the language of the actual regulation. The full sentence in the regulation actually reads:

An applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization.

Someone at USCIS added the words “or closed” to their quotation of the regulation, and then denied our client’s case because it had been administratively closed. The actual language of the regulation states that only denied–not closed–cases are ineligible for an EAD. The idea that USCIS would add language to the regulation in order to improperly deny someone–a UAC no less–their work permit is shocking and distressing.

I have already escalated the issue to the USCIS Ombudsman, an office that can assist with delayed or difficult USCIS cases, because the denial is so problematic. I am waiting to hear back from them, but the Ombudsman’s review process can drag out for months, and my client will not have a work permit in the meantime. This is extremely frustrating for her, especially because she is young and vulnerable (she has that UAC designation for a reason).

If your case has been administratively closed and your EAD application has been denied, please let us know. If there are others experiencing this problem, we can present the issue to USCIS and hopefully seek a resolution of this unfair and harmful practice.

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Implementing the Executive Orders: The DHS Memo

by Jason Dzubow on February 23, 2017

Earlier this week, DHS Secretary John Kelly issued a memorandum describing how DHS plans to implement President Trump’s policies concerning “Border Security and Immigration Enforcement Improvements.” Here, I want to discuss how this memo could affect the asylum system.

First, for people granted asylum or who have obtained their residency (green card) or citizenship through asylum, the memo has essentially no effect. The only possible exception is that DHS plans to expand the Fraud Detection and National Security Directorate (affectionately referred to as the FDNS), and if DHS somehow discovers that a previously-granted case was, in fact, fraudulent, it could reopen that person’s case. Also, given the Trump Administration’s stepped-up enforcement, it is a good idea to carry proof of lawful status with you at all times, just in case you are stopped by the authorities (and in many cases, non-citizens are actually required by law to carry proof of immigration status).

Shade-enfreude (defined): The pleasure one gets knowing that someone with a darker skin tone is in pain.

For people with asylum cases currently pending–before the Asylum Office or the Immigration Court–the memo also has little effect. As I have written here before, a person with a pending asylum case cannot be deported from the United States without due process of law, meaning a hearing before an Immigration Judge and an appeal. So while the atmosphere for asylum seekers has become more toxic, the substantive law and procedure remains largely the same. As mentioned above, you should carry proof of your pending status (work permit, asylum receipt, court order) with you at all times.

One possible issue for people currently in the system is more delay. The DHS memo directs USCIS “to increase the number of asylum officers and FDNS officers assigned to detention facilities located at or near the border with Mexico to properly and efficiently adjudicate credible fear and reasonable fear claims and to counter asylum-related fraud.” The memo also envisions a “joint plan with the Department of Justice to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants.” Assigning more Asylum Officers and Immigration Judges to the border (either by physically sending them there or by having them adjudicate cases remotely), obviously means that those adjudicators will not be available to work on the hundreds of thousands of cases in the backlog, and that could mean more delay. In addition, the memo calls for hiring thousands more immigration officers, and for stepped up enforcement and detention. If all that happens, many more people will be channeled into the Immigration Court system, and unless more judges (lots more judges) are hired, the influx of people into the system will cause further delay. On the other hand, the memo also calls for expanded use of “expedited removal,” which may end up removing certain cases from the system and cause the remaining cases to move more quickly. How all this plays out, only time will tell.

Another possible issue for people with pending asylum cases is the increased focus on fraud. The Immigration and Nationality Act and the REAL ID Act, along with the Code of Federal Regulations, and case law set forth the standards for evaluating credibility. The DHS memo calls for “enhancing” asylum referrals and credible fear determinations. While this would not directly impact people with pending asylum cases (as asylum referrals and credible fear determinations occur prior to a case being sent to Immigration Court or to the Asylum Office), it might signal DHS’s intention to subject asylum cases to greater scrutiny. Also, of course, expansion of the FDNS points towards a greater focus on asylum fraud, which could impact pending cases (personally, I think DHS should be doing more to combat asylum fraud, as long as they are doing so effectively, as I discuss here).

For people inside the United States who plan to seek asylum here, but have not yet filed, the memo may affect you. If you entered lawfully with a visa, you should be able to apply for asylum as before. Indeed, even if you entered unlawfully, you should be able to seek asylum as before. However, if you entered the U.S. without inspection or based on some type of fraud (how broadly “fraud” will be interpreted is not yet known), and you are detained by ICE (Immigration and Customs Enforcement) before you file for asylum, you could be subject to “expedited removal.” People crossing the border illegally who get caught or who surrender to ICE agents may also be subject to expedited removal.

People facing expedited removal are permitted by law to request asylum. If they indicate a fear of harm in their country, the law requires that an Asylum Officer perform a “credible fear interview” where the person must demonstrate a “significant possibility” that they could establish eligibility for asylum. If they meet this standard, their case will be referred to an Immigration Judge for an asylum hearing. If they do not demonstrate a “significant possibility” of winning asylum, they can be removed immediately from the United States (subject to limited review by an Immigration Judge). The DHS memo indicates that the government will greatly expand the use of expedited removal, though the details of the plan have not yet been released.

As you might imagine, there are some major problems with the expedited removal process. For one, ICE officers often fail to inform aliens of their right to seek asylum (or ignore their requests to seek asylum). If this happens, people with a legitimate asylum claim may be removed from the United States before they have an opportunity to claim asylum or have a credible fear interview. The expedited removal process is quite fast and there is little chance to retain counsel and defend yourself, and no opportunity to see an Immigration Judge. In addition, the DHS memo seeks to expand the use of expedited removal and raise the evidentiary bar for credible fear interviews. All this will make it more difficult for asylum seekers who are subject to expedited removal from asserting their claims. I plan to write another post on this topic, but I will first wait for DHS to clarify its position on expedited removal (in the mean time, if you want to learn more, check out this excellent practice advisory by the American Immigration Council).

Per its campaign promises, the Trump Administration is ramping up immigration enforcement efforts. People who have won asylum, or who have already filed, are largely insulated from those efforts, and without Congressional action, it is likely to remain that way. But if you are in the United States and you plan to file for asylum, you should do so soon (at least before your lawful status expires). Remaining here lawfully is the best way to protect yourself from the Administration’s enforcement efforts.

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Hateful Words and Helpful Actions

by Jason Dzubow on February 16, 2017

After nearly 3,000 Americans were murdered on September 11, 2001, President Bush spoke to the nation and to the world. He assured us—Muslim and non-Muslim—that American was not at war with Islam. Would that President Trump had spoken similar words before instituting his immigration ban on seven majority-Muslim countries. But that is not Mr. Trump’s style.

Lord of the Zings: The President’s hateful words may be worse than his harmful EOs.

The resulting firestorm may have been pleasing to the President’s most ardent supporters, who seem to relish the sight of suffering families and damaged government institutions, but for those of us concerned about national security, morality, and the rule of law, the President’s Executive Orders (“EOs”) were a frightening development.

The problem, though, was not so much the EOs themselves, the effect of which is not immediately obvious, and in any case, portions of which have been blocked by the courts, but rather the divisive rhetoric attached to the orders. Let me explain.

The EOs, which are currently blocked by the courts, would bar nationals of Iraq, Iran, Syria, Yemen, Sudan, Somalia, and Libya from entering the United States for 90 days. All refugees would be barred from entering the country for 120 days, and Syrian refugees would be barred indefinitely. On its face, this is not a Muslim ban. If you are from one of the listed countries, you are barred from entry, regardless of your religion, and if you are a Muslim person from another country, you are not barred from entry. But to me, this is a case of “That’s what it says; that’s not what it means.”

So what does it mean? First, in the context of campaign statements disparaging to Muslims, and some statements by Trump surrogates, it’s easy to see why many are interpreting the EOs as a first step towards a more general Muslim ban. Rumors are swirling that the list of countries will be expanded, to include more Muslim nations, such as Pakistan and Afghanistan. In addition, the EOs direct the government to track and publish information about crimes committed by aliens, with a particular emphasis on people convicted of terrorism-related offenses, people who have been “radicalized after entry,” and “gender-based violence against women or honor killings.” Further, the EOs call for a “realignment” of refugee admissions to focus on refugees who are from a “minority religion in the individual’s country of nationality.” It’s hard not to view all this as targeting Muslims.

But perhaps I’ve gotten it all wrong. There have been counter-arguments advanced by the President’s defenders. After all, the EOs do not directly refer to Muslims, and the listed nations are either chaotic (Iraq, Somalia, Yemen, Libya), malignant (Iran) or both (Sudan, Syria). Also, as the EOs require, we should be keeping track of aliens who engage in criminal behavior or who support or commit terrorism (indeed, I myself have argued for such transparency in this blog).

But here is why I don’t buy the counter-arguments and why I believe the EOs are designed to target Muslims: The President is very aware that many people view the orders as a Muslim ban, but he has said nothing to allay the fears of Muslims and immigrants in the U.S. or our Muslim allies abroad. He could easily have issued these same exact EOs and avoided the chaos by better explaining his intentions. He chose to not do that. Maybe it’s me projecting, but I can’t help but feel that he and his core staff are getting some sadistic pleasure watching the suffering and confusion that they are causing. I imagine they also view the mess they’ve made as evidence that they are fulfilling their promises to get tough on immigration and to protect the homeland.

It almost goes without saying that things could have been done differently. The ban could have been explained as a necessary and temporary policy adjustment to enhance our national security. President Trump could have expressed his sorrow that such orders were needed, and he could have reassured people that the ban was only temporary. He could also have made some positive statements about immigrants and Muslims, especially those who are serving with us in the war on terror. But he did not. So all of us are left to wonder whether this is a short-term measure targeting only the listed countries, or whether it is the beginning of something bigger. For American Muslims and immigrants, and for our allies abroad, the uncertainty of the EOs is probably worse than the EOs themselves.

The question, though, is what do we do from here? At this point, it would be naïve to expect any comforting rhetoric, or even common decency, from our President, so I think it is up to us—immigrants, advocates, and their supporters—to craft a response to the new reality.

For me, the protests are a good start. They show our solidarity and our strength (indeed, this is precisely why we held the Refugee Ball last month). There is some comfort in knowing that you are not alone and that the larger community is ready to defend you, and refugees and immigrants in our country are certainly not alone. Tens of thousands of protesters in the streets and at airports have demonstrated as much. We also see this as hundreds of elected representatives and other leaders have been speaking out in defense of our non-citizen neighbors.

Lawsuits—such as the lawsuits by the ACLU and several state governments—are also crucial. Thus far, they have blocked some of the most offensive portions of the EOs. The lawsuits show that the protections of our laws and Constitution extend to all non-citizen in our country and quite possible to some non-citizens who are outside our country. This will, I hope, provide some comfort to those in the Administration’s crosshairs.

Legislation in various states and municipalities is also important. Such action can serve to shield non-citizens from some provisions of the orders, particularly those that seek to encourage (or more accurately, coerce) local governments to help enforcement federal immigration law. They also potentially help build momentum for more positive legislative change on a national level.

Finally, volunteering to assist non-citizens–with housing, food, job search, English–helps such people integrate into our communities and feel more welcome in our country. If you are looking for volunteer opportunities, you might try contacting a local non-profit organization.

While these actions cannot fully allay the fear felt by refugees, asylum seekers, immigrants, Muslims, and many others in our country, they are all signs of the strong resistance President Trump faces to his policies and to his divisive world view. As we move through this difficult time, we must continue to resist hatred and work to support each other.

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Updates on the Executive Orders: The Umpire Strikes Back

by Jason Dzubow on February 6, 2017

President Trump’s Executive Orders (“EOs”) on immigration triggered a series of lawsuits that are still playing out in federal courts across the nation. The lawsuits have resulted in orders barring certain portions of the EOs, at least for the time being.

Judge James Robart: Referees helping Refugees.

For those not familiar with the U.S. system, we have three (supposedly) co-equal branches of government: The executive (the President), the legislative (Congress), and the judicial (federal courts). The judicial generally acts as an umpire or referee, making sure that the other branches play by the rules, or in this case, the Constitution and laws of the United States. What has been happening with the EOs is that the President is asserting his authority over immigration (and the President does have broad authority over immigration), but he is constrained by the U.S. Constitution and the existing immigration law. The lawsuits argue that the President has overstepped his authority, and so far, most courts have agreed to issue preliminary orders blocking the EOs, at least until the courts can more fully analyze whether the orders comply with the law.

Probably the broadest decision thus far issued was by a U.S. District Judge in Seattle, James Robart. The lawsuit was brought by Washington State and the state of Minnesota in their role as “parens patriae of the residents living in their borders.” The decision temporary stays several key portions of the EO related to terrorism based on the Judge’s conclusion that the states’ lawsuit was likely to succeed on the merits and that the states face “immediate and irreparable injury” as a result of the EOs. Specifically, the Judge found that the EO “adversely affects the States’ residents in the areas of employment, education, business, family relations, and freedom to travel.” In addition, the Judge found that, “the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injuries to the States’ operations, tax bases, and public funds.” Thus, the Judge issued a temporary restraining order against the EO. The order blocks portions of the EO nationwide, and will remain in effect until the Court can reach a decision on the merits of the lawsuit (or until it is overturned by a higher court).

The President, through the Department of Justice, filed an appeal, but the U.S. Court of Appeals for the Ninth Circuit has thus far refused to overturn the District Judge’s order. So what does all this mean?

First, according to its website, USCIS “continues to adjudicate applications and petitions filed for or on behalf of individuals in the United States regardless of their country of origin, and applications and petitions of lawful permanent residents outside the U.S. USCIS also continues to adjudicate applications and petitions for individuals outside the U.S. whose approval does not directly confer travel authorization. Applications to adjust status also continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated in the Jan. 27, 2017, ‘Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States.'” This means that even if you are from one of the “banned” countries–Iraq, Iran, Syria, Sudan, Somalia, Libya or Yemen–your case will be processed as before the EO. So USCIS should continue to issue decisions for nationals of such countries, at least for the time being.

Second, the State Department will resume issuing visas for people from the listed countries, including refugees. U.S. visas for nationals of these countries that were “provisionally revoked” are now “valid for travel to the United States, if the holder is otherwise eligible.” Meaning that if you are from a banned country and you have a valid U.S. visa, you should be able to enter the United States. Again, the Judge’s order is temporary, and it may be overturned, so if you have a visa and wish to come to the United States, you should do so immediately, since we do not know for how long the Judge’s temporary restraining order will remain in place.

Third, DHS/Customs and Border Protection is also following the Judge’s order, even if it is doing so reluctantly. From the CBP website:

In accordance with the judge’s ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President’s Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.

So all people with valid visas and who are otherwise eligible to enter–including nationals of the banned countries–should be able to board planes, travel to the United States, and enter the country. In short, the Judge’s order restores the situation for such travelers to how it was prior to the EOs.

Finally, I wrote in an update to last week’s post that additional countries may be added to the banned list. As long as the Judge’s order is in place, I doubt that will happen, and–more importantly–the State Department informed the American Immigration Lawyer’s Association that there was no “addendum, annex or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in [the] Executive Order.” Hopefully, this means that we will not see additional countries added to the “banned” list.

The legal fight over the EOs is a rapidly moving target, so before you make any travel plans, please check the news or check with a lawyer to make sure there are no additional changes affecting you. I will also try to keep posting updates here.

[Update, February 10, 2017 – In a 3-0 decision, the U.S. Court of Appeals for the Ninth Circuit has ruled that the temporary restraining order put into place by Judge Robert will remain in place. So for now, implementation of the EO continues to be blocked.]

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Update on President Trump’s Immigration Orders

by Jason Dzubow on February 1, 2017

Since President Trump began issuing executive orders (“EOs”) on immigration last week, there has been outrage, confusion, and chaos within the immigration community. The EOs were clearly not very well thought out, and seem to have been written by someone lacking a comprehensive understanding of America’s immigration law. As a result, several courts have blocked portions of the EOs, and the Administration has walked back one of the more problematic elements of the new rules. There will be time later for an analysis of how all this affects our country’s security and moral standing, but since we are still in the middle of it, and since the situation is rapidly changing, I wanted to provide an update to my post from last week, to help non-citizens understand their situation.

I’ve never felt so proud to be Canadian! Oh, right, I’m American. Woo-f’n-hoo.

As I wrote last time, the EOs’ most damaging effects are on people trying to come to the United States. For people who are already here, the effect is less dramatic (and not all-together clear). Also, I believe nothing I wrote last week is obsolete, so if you have not read the previous posting, please do, as today’s posting is meant to supplement what I wrote last time.

Lawful Permanent Residents from Countries of Particular Concern: In some ways, the worst part of the EOs is how they affected lawful permanent residents (“LPRs” or people with green cards) who are from “countries of particular concern,” meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya (perhaps more countries will be added to this list later).

DHS originally interpreted the EOs to mean that LPRs from these countries would be turned back at the border. Apparently, at least some LPRs were rejected at the airport and sent back to their point of origin (Customs and Border Protection or CBP claims that only two LPRs were turned back). However, after (partially) successful litigation by the ACLU and others, DHS Secretary John Kelly issued a statement that “the entry of lawful permanent residents [is] in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” This means that if you are an LPR from one of the listed countries, you should probably (but not certainly) be able to re-enter the United States, but you should expect delays upon arrival, as your case will be individually reviewed to determine whether you present a threat to the United States. Whether you will, in fact, be able to enter the U.S. is not guaranteed, and how long the delay will be at the airport is currently unknown (DHS claims that entry into the U.S. should be “swift”).

Given all this, it is clearly a bad idea for anyone with lawful status in the U.S. who is from one of the listed countries to travel outside the U.S. at this time. If you are from one of the listed countries and are currently outside the U.S., you should be able to return if you are an LPR (if you have some other status in the U.S., especially a non-immigrant status, you likely will not be able to return at this time). Because there is so much uncertainty for people from these countries, it is best to remain in the United States or, if you are outside the country and are able to return, to return as soon as possible.

People from Countries of Particular Concern Waiting for an Immigration Benefit: For people in the U.S. who are from “countries of particular concern” and who are waiting for an immigration benefit, such as asylum, a work permit or a green card, the situation is also unclear.

Section 3 of the EO on terrorism is titled, “Suspension of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern” and states that the U.S. government should conduct a review to determine whether additional information is needed to adjudicate visas, admissions, and “other benefits under the INA (adjudications)” for people from countries of particular concern. The reference to “other benefits under the INA” or Immigration and Nationality Act – the immigration law of the United States –would presumably include benefits such as green cards, asylum, and work permits, though the EO does not specifically define what it means. Also, while the EO suspends immigrant and non-immigrant admissions for 90 days for people from countries of particular concern, it makes no other mention of suspending immigration benefits to such people who are already in the U.S. As a result, it is unclear whether, or for how long, USCIS (the agency that administers immigration benefits) will suspend such benefits for people from the listed countries.

Unfortunately, some leaked–but thus far unconfirmed–emails from USCIS indicate that the agency has decided to suspend all final decisions in cases for people from the listed countries. According to one news source:

“Effectively [sic] immediately and until additional guidance is received, you may not take final action on any petition or application where the applicant is a citizen or national of Syria, Iraq, Iran, Somalia, Yemen, Sudan, and Libya,” wrote Daniel M. Renaud, associate director of field operations for DHS’s office of U.S. Citizenship and Immigration Services. “Field offices may interview applicants for adjustment of status and other benefits according to current processing guidance and may process petitions and applications for individuals from these countries up to the point where a decision would be made.”

In other words, while interviews can take place for such people, no decisions–to include approval, denial, withdrawal, or revocation–will be made “until further notice.” I can report that USCIS is conducting interviews for people from countries on the list–my Syrian asylum client was interviewed yesterday–but I have not heard anything official yet about whether decisions will be issued. If this is accurate, it means decision will be suspended, at least for a while, on asylum cases. Whether it will affect applications for work permits, which are issued while waiting for a final decision on an asylum case, is less clear. Hopefully, it will not, and hopefully, this suspension will be temporary.

I-730 Petitions: If a person is granted asylum, she can file an I-730 (follow to join) petition for her spouse and minor, unmarried children. For family members from countries on the list, the EO applies, and thus the State Department “has stopped scheduling appointments and halted processing for follow-to join asylee beneficaries who are nationals or dual nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. Further information on appointments for follow-to-join refugees will be available in the future.” In other words, family members of asylees from the listed countries cannot currently come here based on I-730 petitions, but how long this prohibition will last is unknown. In contrast to the State Department website, CBP indicates that I-730 petitions will be adjudicated on a case-by-case basis. How this will ultimately play out, we do not know, but there is still hope that family members overseas will be able to join the principal asylee in the United States. Also, the visa ban is set to expire after 90 days, and so we can hope that once procedures are reviewed, travelers from “countries of particular concern” will be able to come to the United States to join their family members.

People from Other Muslim Countries: At this point the EOs are limited to the seven listed countries. People from other Muslim countries are not affected. However, the EOs require government agencies to determine whether additional countries should be added to the “banned” list. For this reason, if you are a non-citizen, and particularly if you are from a predominately Muslim country, it is important to keep an eye on the news, just in case more countries are added to the list. A good source for up-to-date information about the EOs, and the lawsuits opposing them, is the American Immigration Council’s website, here.

So that is the update for now. It is important to understand that the “ban” described in the EO is temporary, and that the people mainly affected are nationals from “countries of particular concern.” Of course, we will have to see how this plays out going forward, but it is important to remain calm and patient, and to keep hoping–and working–for something better.

[Update for February 2, 2017: I have heard an unconfirmed rumor out of the State Department that additional countries will be added to the list of banned countries. This is not confirmed, but here is the message I received: “There is a draft order being circulated at the State Department. The order has language extending the list of banned countries to Egypt, Lebanon, Afghanistan, Pakistan, Philippines, Mali, Colombia, and Venezuela.” I suggest people from those countries pay careful attention to the news, in case the countries are added to the list, and I suggest that people from these countries not travel outside the U.S. until we have some clarification.]

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During the first week of his Administration, President Trump has signed two “executive orders” on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.

This is how it looks when America compromises its values.

The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client–and a lawful permanent resident based on asylum–was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend’s client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending–and minor–criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion–closing certain cases where the alien has no criminal issues and has equities in the United States–has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:

  • Don’t panic. The President has the power to issue executive orders (“EOs”), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
  • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can’t just be thrown out of the country. Even an expedited process usually takes months.
  • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing–see below) any crimes.
  • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from “countries of particular concern” (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO’s seem to temporarily suspend immigration benefits for people from those nations.
  • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
  • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for “extreme vetting.” Since we don’t really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
  • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.

In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.

The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone’s guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from “countries of particular concern.” The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.

The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end “sanctuary” jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply “information needed for adjudications” of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.

So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump’s actions (spoiler alert: They are terribly damaging to our national interests and our country’s character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

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Work Permits for Asylum Seekers—Some Good News

by Jason Dzubow on January 25, 2017

The new Administration has raised anxieties in immigrant and asylum seeker communities. In part, this is because of President Trump’s rhetoric (and rhetorical style) during the election. And in part, it’s because we just don’t know what to expect from a Trump Administration. Rumors have been flying: Will there be some sort of Muslim ban? Will the President repeal DACA? Or will he (and Congress) create a permanent legalization for DACA recipients? Mr. Trump will be issuing some executive orders later today banning Syrian and other refugees from coming to the U.S., and restricting visas for people from certain Middle Eastern countries. How this will all play out, we shall see.

Filling gaps is a good thing.

But amidst the uncertainty, there is some good news related to work permits—or Employment Authorization Documents (“EADs”)—for asylum seekers.

First, last fall, the government started issuing two-year EADs instead of one-year EADs to people with pending asylum cases. This was a helpful development. It saves money since applicants now only have to apply for a new card every other year. It also makes it easier to obtain and retain employment, since employers feel more confident hiring people who have a longer period of authorized employment. In addition, many states issue driver’s licenses that correspond to the dates on the EAD, so a two-year card means a two-year license. All this helps ease the wait for people seeking asylum.

Second, last week the government issued new (and long anticipated) regulations “to help prevent gaps in employment authorization”:

DHS is providing for the automatic extension of expiring EADs (and underlying employment authorization, if applicable) for up to 180 days with respect to individuals who are seeking renewal of their EADs (and, if applicable, employment authorization) based on the same employment authorization categories under which they were granted.

This means that when you file to renew your EAD, your card will be automatically extended for 180 days once you receive the receipt (it usually takes three or four weeks to get the receipt). This is an important development, since USCIS has been taking months to process EAD renewals, and people were losing their jobs and driver’s licenses while they waited for their new EADs.

The automatic EAD extensions apply to refugees, people with asylum, and people who have pending asylum or withholding of removal cases, among others. You can see the new regulations here (see page 82491, the second to last page of the PDF) and here (page 82455, footnote 98, which lists the categories of people eligible for the automatic EAD extension).

Also, remember that you can apply for a new EAD up to 120 days before the old card expires. Even with the most recent change, it is still a good idea to apply early for your new card, so you receive the replacement EAD as soon as possible.

And here’s one last tip for today. If you cannot afford to pay for the new EAD (fees recently went up), you can request a fee waiver from USCIS, which—if granted—allows you to obtain a new EAD without paying the fee. To apply for a fee waiver, use form I-912, available here.

I have written many times about the affirmative asylum backlog. It has been a real disaster for asylum seekers—especially those separated from their family members. The recent changes to the EAD process, during the waning days of the Obama Administration, have at least made one aspect of the wait easier, and for that, we can be thankful.

[Update 03/27/17: USCIS has published a helpful summary of the categories eligible for the automatic extension here. They also created a useful Fact Sheet, available here.]

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The Refugee Ball Post-Game Report: Why It Matters

by Jason Dzubow on January 19, 2017

The Refugee Ball took place on Tuesday, January 17, 2017. It was wonderful to see hundreds of people from all different backgrounds and countries come together to celebrate America’s humanitarian immigration system.

Economist, talk show host, women’s rights advocate, and amazing singer, Amal Nourelhuda (originally from Sudan), performs at the Refugee Ball.

There were musicians from Ethiopia, Sudan, Uganda, the Democratic Republic of Congo, and Tibet. There was a Persian rapper. Our emcee was a journalist/asylum seeker from Ethiopia. We had Lebanese, Tibetan, and Ethiopian food, and Syrian cookies. There was artwork by a young Honduran asylum seeker and an Iranian refugee. Speakers included the former Chairman of the Board of Immigration Appeals (who now has his own blog), an asylee from Azerbaijan, and the president and CEO of HIAS, a non-profit organization that assists refugees. We also had a special guest appearance by Congressman Jamie Raskin. All-in-all, not a bad way to spend an evening.

One message of the Refugee Ball is that asylum seekers and refugees contribute in valuable ways to our society. They bring their skills and talents to America, and we are stronger because of their presence here. Also, by offering asylum to those who work with us and those who share our values, we demonstrate to our allies that we are on their side; that we have got their back. This makes it more likely that people around the world will cooperate with us and work to advance the values that our nation aspires to: Democracy, freedom of speech, women’s rights, LGBT rights, freedom of religion, equality, peace. When we have the cooperation of our allies, our country is safer and more secure, and our asylum system helps engender that cooperation.

And of course, granting protection to those in need of assistance is the right thing to do. I know that if my family members had to flee the United States, I would want more than anything for them to receive a friendly reception in their country of refuge. Do unto others as you would have them do unto you.

Another message of the Ball is that advocates for asylum seekers and refugees remain committed to assisting people who have come to our country for protection. And although the incoming Administration may create a more difficult environment for our clients, our commitment to those seeking our country’s protection will not wane.

For me, though, the most important message of the Ball was that of the courage and perseverance displayed by the refugees and asylum seekers who I saw there. Many of the people who participated in the event were themselves victims of terrible torture and persecution. But there they were at the Ball–singing and dancing, giving speeches, making art and food for us to enjoy. Each of them provides an example of how the human spirit can survive extreme adversity and go on to create beauty, and of how life can triumph over death. I can’t help but be inspired by their examples.

So while we really do not know what to expect in the days and months ahead, we can draw strength from each other, and from the examples set by the refugees and asylum seekers themselves, who have endured great hardships, but who still have hope that America will live up to the high ideals that we have set for ourselves.

To those who participated in, supported, and attended the Refugee Ball, Thank you. Thank you for contributing your time, talent, energy, and money to supporting the cause of refugees and asylum seekers. Thank you for inspiring me, and for reminding me of why I work as an asylum attorney. I feel optimistic knowing that we are united in our goal of welcoming the stranger, and that we are all in this together to support each other.

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The Refugee Ball: Why We Celebrate

by Jason Dzubow on January 6, 2017

Response to the Refugee Ball has been overwhelming. It looks like we have essentially reached capacity, and it should be a fantastic event with amazing musicians, artists, and food.

Here, though, I want to talk about what we are celebrating, and why. The “reason for the season,” as it were. The Ball takes place a day after the Martin Luther King, Jr. holiday. Dr. King famously said, the “arc of the moral universe is long, but it bends towards justice.” Of course, the arc does not bend by itself. People have to work hard to push it in the right direction.

One purpose of the Ball is to celebrate the people who help bend the arc by assisting refugees and asylum seekers: Lawyers, doctors, social workers, activists, students, and advocates.

But more than those of us who are helping refugees and asylum seekers, the purpose of the Ball is to celebrate the refugees and asylum seekers themselves; people who have worked and sacrificed and struggled for justice. Attending the Ball will be activists for democracy and peace and women’s rights, journalists who have stood up for free speech against tyrants, advocates for gay and lesbian rights, members of religious minorities who have risked their lives for their faith, members of oppressed ethnic minorities and oppressed nationalities, interpreters and aid workers who have stood shoulder-to-shoulder with our own country’s soldiers and diplomats in places like Afghanistan and Iraq. These people—asylum seekers and refugees—have risked their careers, their property, and their lives in order to help bend the arc of the moral universe towards justice.

And so the Ball will celebrate and honor their work. It also gives us an opportunity to express our solidarity with them, and our commitment to them.

Critics of our humanitarian immigration policies claim that asylum is a gift, given to needy people because Americans are nice. They say that we dole out this generous benefit and get nothing in return. This view of asylum is false.

Since its beginning—during the Cold War in the 1950s—asylum was about advancing America’s strategic interests. In those early days, it was about demonstrating our moral superiority to our Soviet adversaries. We celebrated famous dissidents, athletes, and artists who defected to the West.

Now, the Soviet Union is gone, but asylum remains an essential tool of U.S. foreign policy. We gain tangible benefits from asylum. And I am not talking only about the influx of talented, brilliant people who add to our nation’s strength.

When we give asylum to interpreters who served with our soldiers in Iraq or Afghanistan, we demonstrate our loyalty to those who work with us. When we grant asylum to women’s rights advocates, we show our support for the cause of gender equality. When we support journalists, we show that we stand for free speech. And when we grant asylum to religious minorities, we reinforce our founding principle of Religious Freedom.

Imagine for a moment what it would mean to deny asylum to Iraqi interpreters, woman’s rights advocates, journalists or members of religious minorities. Imagine what that would say about us, about our country. Imagine what message it would send to those around the world who are working for the values that we, in our best moments, embody.

But when we offer asylum to those who have stood with us, and who have risked their lives to advance the values that we cherish (and which we too often take for granted), we send a powerful message: When you work with us, when you work for the values we believe in, America has got your back. We are with you. And when activists around the world have confidence that America is on their side, it helps them continue their struggle for justice.

And it helps us too. If we want their cooperation and loyalty going forward, our allies need to know that we are there for them. That we will protect them if they need our help. If they do not have confidence in us, they won’t support us. Our asylum and refugee systems demonstrate –in a tangible way—our loyalty to those who stand with us, and this helps us advance our own national interests and moral values.

And so at the Refugee Ball, we will celebrate our humanitarian immigration system. We will celebrate the people who work within that system, and those who have come to our country through that system. We hope to see you there.

To learn more about the Ball, visit our Facebook page.

To donate, please visit our Go Fund Me page.

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The inauguration of a new president is almost upon us. It’s traditional to celebrate the democratic transition of power with lavish parties. They take place all over Washington, DC. Some are formal affairs attended by the President and other VIPs; others are much simpler and unpretentious.

This year, I know that many refugees, asylum seekers, and their advocates are nervous about the new Administration and what it might mean for them and their families. During the campaign, there was a lot of negative talk about immigrants and refugees. It’s not surprising then, that many of us are not feeling in a celebratory mood.

But it seems to me that we need to come together to remind ourselves of why accepting refugees, asylum seekers, and immigrants into our society is so important. We–advocates, clients, family members–draw strength from one another. For that reason, a group of us has organized a “Refugee Ball” for refugees, asylum seekers, their families, advocates, and supporters.

The purpose of the Ball is not to celebrate the new President; nor is it to denigrate him. Rather, we want to support each other and help demonstrate the value of refugees, asylees, and immigrants to the wider community. We also want to celebrate the core humanitarian values that underpin our refugee and asylum programs–values like compassion, generosity, friendship, diversity, inclusiveness, and due process of law.

With that in mind, it is my pleasure to invite you to attend the Refugee Ball, which will take place on Tuesday, January 17, 2017 at the Sixth and I Historic Synagogue, located at 600 I Street, NW, Washington, DC 20001.

Refugee, asylee, and immigrant vendors will provide food, music, and art. Also, immigration lawyers–including me–will be on hand to provide free consultations and “Know Your Rights” presentations. Events will start at 5:00 PM with the legal consults. Other activities will begin at 6:00 PM.

The Ball is free and open to the public, but please let us know if you plan to attend by responding on our Facebook page (click here for the link). We will update the Facebook page with more information as we get closer to the date.

Also, if you would like to support the Ball financially, please consider making a contribution (click here for the link), and spreading the word about this event. All proceeds will go towards the cost of the Ball, and any leftovers will be donated to local and international non-profits that support refugees.

Thank you, and I hope to see you there.

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An Open Letter to My Friends at DHS and DOJ

by Jason Dzubow on December 22, 2016

Former House Speaker, and Donald Trump adviser, Newt “The Brain” Gingrich recently made plain what Mr. Trump has been arguing for months: The new Administration is planning “straight-out war” against the federal bureaucracy. But in my time, there are two things that I’ve learned about ideological wars: (1) The casualties are flesh-and-blood human beings, and (2) Everyone involved thinks that G-d is on his side.

"Sidekick to a bully" is not a job title many government lawyers relish.

“Sidekick to a bully” is not a job title many government lawyers relish.

In this case, Mr. Gingrich was speaking specifically about the troubled Department of Veterans Affairs, which he accused of various sins amounting mostly to half-truths (or perhaps whole lies). But we’ve seen a pattern with Mr. Trump’s appointments. For example. the new head of the Department of Energy wanted to eliminate that agency in 2012. The leader of the Environmental Protection Agency doubts human-influenced climate change and will likely prevent that organization from issuing regulations to protect public health. And the new Secretary of the Department of Housing and Urban Development will be Dr. Ben Carson, whose main qualification seems to be that he lives in a house.

But the situation for the Departments of Justice and Homeland Security are a bit different, at least in terms of those agencies’ oversight of our nation’s immigration laws. In those cases, it’s more likely that Mr. Trump will be ramping-up enforcement at the possible expense of other immigration functions (like processing immigration benefits).

Senator Jeff Sessions will lead the DOJ as Attorney General. He is known for his opposition to immigration reform and his belief that legal immigration to the United States should be reduced. So how will Senator Sessions’s appointment affect DOJ in terms of immigration enforcement? DOJ administers the nations Immigration Courts and the Board of Immigration Appeals (“BIA”), and (within some limits) interprets our immigration laws. As Attorney General, Mr. Sessions has the power to narrow precedents favorable to non-citizens. He can do this directly, by issuing Attorney-General opinions, which supersede decisions made by the BIA. He can also do it indirectly, by appointing ideologically like-minded Judges and BIA Members. DOJ also administers the Office of Immigration Litigation (“OIL”), which defends BIA decisions in the federal courts. Mr. Sessions could order OIL to take more hard-line stances, and he could push litigation that reflects his restrictonist viewpoint.

How would this be different than what we have now? The atmosphere for aliens in immigration proceedings has never been easy. That’s particularly true for aliens convicted of crimes. But at least in most cases, I have found that Judges, BIA Board Members, and OIL attorneys are reasonable, and do their best to follow the law. Sometimes that means deporting people who are very sympathetic; other times, it means allowing people to stay who they believe should be deported. The problem comes when we have DOJ attorneys who are more concerned with ideological ends than with due process. We saw this most clearly when Attorney General John Ashcroft purged liberal (or supposedly liberal) BIA Board Members at the beginning of the George W. Bush Administration. Perhaps we will see a similar reshuffling in the months ahead.

For fair-minded attorneys, Judges, and Board Members at DOJ, that’s a frightening prospect. Are their jobs in jeopardy? Will they be forced to take positions contrary to their conscious, or contrary to their interpretation of the law? Many immigration benefits–such as asylum–contain a discretionary element. Will the ability to exercise discretion be intolerably curtailed?

It’s still unclear whether attorneys and officers at the Department of Homeland Security will face the same potential dilemmas as their DOJ counterparts. The new Secretary for DHS will be retired Marine Corps General John Kelly, who is widely viewed as non-ideological. Under the DHS ambit are several agencies that impact immigration, including U.S. Immigration and Customs Enforcement (“ICE”), which is basically the immigration police and prosecutors, and U.S. Citizenship and Immigration Services (“USCIS”), which administers immigration benefits, including asylum. We have yet to learn who will lead these agencies, and probably the choices for those posts will have more effect on the officers and attorneys “in the trenches” than General Kelly, who is overseeing the entire agency.

Currently, DHS attorneys, Asylum Officers, and ICE officers have a fair bit of discretion in handling cases, especially cases where the alien has no criminal record. DHS attorneys often can decide whether to keep an alien detained, they can offer prosecutorial discretion, and they can decide how aggressively to pursue an individual’s deportation or whether to agree to relief. Asylum Officers also have a fair bit of discretion to determine credibility and decide on relief.

The attorneys, officers, and Judges I know at DHS and DOJ are generally intelligent, caring individuals who do their best to follow and enforce the law without inflicting undo harm on individuals and families. They are aware of their power and their responsibilities, and they take their jobs seriously. Sometimes, I disagree with them on their interpretation of the law. Sometimes, I think their approach is unnecessarily aggressive. In some cases, we evaluate the merits of a case differently. While we do not always agree, I can see that they are performing an essential function by fairly enforcing our nation’s immigration laws.

In speaking to some DOJ and DHS attorneys and officers since the recent election, I have seen a certain level of demoralization. Some people have expressed to me their desire to leave government service. While these individuals respect and follow the law–even when the results are harsh–they are not ideological. They do not hate immigrants (or non-white people, or Muslims) and they do not want to enable or contribute to a system that they fear will become overtly hostile to immigrants that President Trump considers undesirable. I suppose if I have one word of advice for such people, it is this: Stay.

If you are a government attorney or officer and you are thinking of leaving because you fear an overtly ideological Administration, you are exactly the type of person that we need to stay. As has often been the case in recent decades, an honest, competent bureaucracy is the bulwark against our sometimes extremist politics.

It’s likely that if you are a government employee who is sympathetic to non-citizens, your job will get more difficult, the atmosphere may become more hostile. It will be harder to “do the right thing” as you see it. Opportunities for promotions may become more limited. Nevertheless, I urge you to stay. We need you to help uphold the law and ensure due process for non-citizens and their families. To a large extent, our immigration system is as good or as bad as the people who administer the law. We need the good ones to stay.

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Whither the Syrian Christian Refugees?

by Jason Dzubow on December 16, 2016

As the Syrian city of Aleppo falls under government control, the question of Syrian refugees has become even more urgent. Forces loyal to the government are summarily murdering civilians, and even the wounded cannot be evacuated due to government (and Russian) military action. Despite heartbreaking “goodbye messages” from civilians trapped in the conflict zone, I have little expectation that the world will do much to help. We have ignored genocides again and again, so why should we expect anything different here?

Which is easier to explain: The absence of Christian refugees, or the absence of Christian charity?

Accepting Syrian refugees into the United States has also been controversial. Donald Trump called them “a great Trojan Horse.” I suppose the same could be said of the Jews fleeing Hitler on the ship St. Louis, which reached our shores but was refused permission to land. I am sure many of those men, women, and children were secret Bolsheviks plotting a Communist takeover. Lucky for us, they were rejected and returned to Europe, where over 250 of them perished in the Holocaust.

One gripe raised by those opposing the admission of Syrian refugees is that the refugees are disproportionately Muslim. In a recent concurring opinion, Judge Manion of the U.S. Court of Appeals for the Seventh Circuit, notes the mysterious absence of Christians from the pool of Syrian refugees arriving in the United States. See Heartland Alliance National Immigrant Justice Center v. DHS, 16-1840 (7th 2016). J. Manion writes:

I write separately for a… critical reason, which is [to express] my concern about the apparent lack of Syrian Christians as a part of immigrants from that country…. It is well-documented that refugees to the United States are not representative of that war-torn area of the world. Perhaps 10 percent of the population of Syria is Christian, and yet less than one-half of one percent of Syrian refugees admitted to the United States this year are Christian…. [Of] the nearly 11,000 refugees admitted by mid-September, only 56 were Christian. To date, there has not been a good explanation for this perplexing discrepancy.

Judge Manion’s observation is supported by a recent report from the Pew Research Center, which found that in FY 2016:

[R]efugee status was given to 12,587 Syrians. Nearly all of them (99%) were Muslim and less than 1% were Christian. As a point of comparison, Pew Research Center estimated Syria’s religious composition to be 93% Muslim and 5% Christian in 2010.

The most accurate data I have found about Syrian refugees essentially lines up with the findings of Judge Manion and Pew: Of 12,541 Syrian refugees admitted into the U.S. in FY 2016, between 0.5 and 1% self-identified as Christian. It is a bit less clear how many Christians lived in Syria prior to the current war. Estimates range from 5.1% (Pew) to 10% (CIA). But no matter how you slice it, it’s clear that the Syrian refugees entering the U.S. are not representative of the country’s population–fewer Christians than expected are coming to our country as refugees. So what’s going on here?

First, here is the conclusion that I don’t accept–the one pushed by people opposed to Muslim immigration–that the Obama Administration is deliberately favoring Muslims over non-Muslims. I don’t support this conclusion because, while a disproportionate majority of Syrian refugees are Muslim, the majority of refugees overall (from all countries), are not Muslim. In FY 2016, we admitted 38,901 Muslim refugees and 37,521 Christian refugees (out of a total of 84,995 refugees). In other words, in FY 2016, about 46% of refugees admitted to the U.S. were Muslim; 44% were Christian. (This was the first year of the Obama Administration where more Muslims than Christians were admitted as refugees).

A more plausible explanation for the absence of Syrian Christians was proposed by Jonathan Witt, an Evangelical writer and activist, and an Obama critic. Basically, he believes that Muslims are more likely than Christians to end up in refugee camps, and since refugees are generally selected for resettlement from the camps, Christians are disproportionately left out. This part sounds logical, but (to me at least) Mr. Witt takes his argument a bit too far:

As bad off as the Muslim refugees are, they aren’t without politically well-connected advocates in the Middle East. Many Muslim powerbrokers are happy to see Europe and America seeded with Muslim immigrants, and would surely condemn any U.S. action that appeared to prefer Christian over Muslim refugees, even if the effort were completely justified. By and large, they support Muslim immigration to the West and have little interest in seeing Christian refugees filling up any spaces that might have been filled by Muslim refugees.

The deck, in other words, is heavily stacked against the Christian refugees. The White House has been utterly feckless before the Muslim power structure in the Middle East that is doing the stacking, and has tried to sell that fecklessness to the American people as a bold stand for a religion-blind treatment of potential refugees —religion tests are un-American! It’s a smokescreen.

Here, he’s lost me. This conspiracy-minded nonsense might be more convincing if there were some evidence for it (and remember, FY 2016 was the first year of the Obama Administration where we resettled more Muslim than Christian refugees). The prosaic arguments may be less interesting, but they have the vitue of being more likely.

I have a few of my own theories as well. For one thing–and maybe this ties in with the first part of Mr. Witt’s thesis–Syrian Christians were somewhat better off than Syrian Muslims. If they have more resources, maybe they were able to avoid the refugee camps by leaving in a more orderly way and by finding (and paying for) alternative housing. Also, Syrian Christians are generally not being targeted by the Assad regime. Indeed, in view of the threats they face from extremists, Syrian Christians are more likely to support the government–not because they have much affection for Bashar Assad, but because the alternative is even worse.

So there very well may be a reasonable explanation for the lack of Christians among Syrian refugees resettling in the U.S. But because the Administration has not explained the anomaly, we are (as usual) left with an information void. And that void is being filled by speculation from fringe writers like Mr. Witt, but also by federal court judges, like Judge Manion. The solution should be obvious: Those involved in the refugee resettlement effort should tell us what’s going on. This would help satisfy many critics and it will help protect the refugee program going forward.

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