It’s getting more and more difficult to win an asylum case at the Asylum Office. So if your case is not approved, what happens?

For asylum seekers and pizza lovers, this guy is bad news.

For affirmative asylum cases, there are two possible negative outcomes at the Asylum Office level: Denial and Referral.

Denials occur only if you are “in status,” meaning you have some other type of non-immigrant status aside from the pending asylum case. Under the old system (that existed from December 2014 to January 2018), where cases were interviewed in the order received, very few applicants were “in status” by the time of their asylum decision. This is because the cases took years, and very few non-immigrant visas allow an alien to remain lawfully in the U.S. for that long (some exceptions might be the F, J, and H1b visas).

Now, under the new system of last-in, first-out (which is pretty much the same as the pre-December 2014 system), we can expect many newly-filed cases to receive decisions much more quickly, so more applicants will be “in status” when they receive a decision.

If the decision is “yes,” then you receive asylum with all the accompanying benefits. But if the decision is “no” and you are still “in status,” the Asylum Office will give you a letter, called a Notice of Intent to Deny or NOID. The NOID provides a fairly detailed explanation of why your case is being denied, and it gives you 16 days to file a response. In the response, you can include new evidence and explain why the Asylum Office should grant your case.

In the last few years, we have rarely seen NOIDs. However, before December 2014, we would see them now and again. Most often, we saw them when a new client came into the office seeking help with a response. The problem for a busy attorney is that the NOIDs give so little time to respond (16 days) and usually a few days had already passed before the person came for help.

My experience with NOIDs is that the Asylum Office pays attention to the responses. I’d guess that we were successful in getting asylum for about 50% of the people who came to us with such letters. The lesson here is that if you get a NOID, you should do your best to respond. In some cases, it may be impossible to get the Asylum Office to reverse its decision. But as they say, you’ve got to play to win, so if you get a NOID, make sure to respond–you may turn an “intent to deny” into a grant.

If you respond to the NOID and the Asylum Office still decides to deny your application (and assuming your status did not expire in the interim), you will receive a final denial. This means that your case is now over, and you can remain in the United States until your period of lawful stay ends. At that point, you are supposed to leave or seek some other status.

The problem for many asylum seekers, however, is that they do not want to return home (they are asylum seekers, after all). Even though the Asylum Office has denied their case, they want an opportunity to present the case to an Immigration Judge. This makes sense, as many cases denied at the Asylum Office are granted in court. As I’ll discuss in Part 2 (spoiler alert!), asylum cases denied by the Asylum Office are referred to Immigration Court if the applicant is out of status. But if you are denied and you are “in status,” what can you do?

If you received a final denial in your asylum case and you want to go to court, you have to re-apply for asylum at the Asylum Office. The procedure for a second application is different than for a first (check the I-589 instructions). Essentially, you submit a new application directly to the local asylum office, rather than file with a USCIS Service Center (initial asylum applications are sent to the Service Centers).

In theory, for a second application, the Asylum Office will only consider events that occurred after the first application. In other words, they typically will not revisit the first asylum application. Instead, you need to present something new if you want them to grant your case. It’s pretty rare that some new evidence arises between a first and second asylum application, and so the second application is likely to be denied. If the second application is denied, and you are now out of status, your case will be referred to an Immigration Judge, who will look at both your asylum cases.

Given this cumbersome system of having to file a second case, some applicants prefer to file for asylum when their status is expired or close to expiring (but keep in mind the one-year filing deadline). These applicants do not want to leave the U.S., and they prefer to go directly to court if their case is denied. This is certainly a reasonable plan. However, I do think it is important to consider the pros and cons of this approach.

On the plus side, if your denial arrives after your status has expired, you will go from the Asylum Office directly to court, so your case may move a bit faster. Also, of course, you get the chance to present your claim to an Immigration Judge. On the negative side, in order to make this happen, you have to wait until your status has expired (or is close to expiring) before you file your case. Some people may not like this delay. Also, you will not receive a NOID, and so you will only have a vague idea about the reason for the denial (when a case is referred to court, the Asylum Office does not give a detailed explanation of the reasons). Finally, you will not have an opportunity to rebut the Asylum Office’s reasons for denying your case, which means you lose an opportunity to win the case after the NOID is issued. For me, there is no correct answer here. The time frame of when you choose to apply depends on which path you prefer.

Of course, if you are out of status and receive a denial from the Asylum Office, your case will go to an Immigration Judge. But that is a topic for another day. Stay tuned….

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The One Year Bar and LGBT Asylum Claims

by Jason Dzubow on February 15, 2018

Richard Kelley is the  Legal Program Coordinator for DC Center Global, an organization focused on supporting LGBTQI asylum seekers in Washington, DC. Most recently, Richard was a Senior Associate at the DC Affordable Law Firm, practicing immigration and family law. He is currently an associate at DLA Piper (USA). His full biography can be found here

Contact Richard Kelley at richardkelley@thedccenter.org.

Richard Kelley

In 1996, the United States Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which fundamentally changed the landscape of asylum law.  Most notably, IIRIRA created a new requirement that those entering the country had to apply for asylum within one year of arriving in the United States. This one-year bar has created exceptional challenges for individuals seeking asylum and has had a notable impact on LGBTQI asylum seekers in particular.

LGBTQI asylum seekers may miss this rigid one year deadline for several reasons: Insecurity about, discomfort with, or lack of openness about their identity; fear of being identified as LGBTQI or being “outed” as LGBTQI in their home country or in the immigrant diaspora within the United States; immense emotional and psychological trauma caused by experiences related to their LGBTQI status; or even lack of awareness that they can pursue asylum based on LGBTQI status.  Individuals can often find themselves still exploring whether to apply for asylum based on sexual orientation even after one year has passed.

Those asylum seekers who are aware of the one-year bar may not know that it is not absolute. There are two ways that an asylum seeker can overcome the one year bar to asylum: (1) the existence of a changed circumstance which materially affects the applicant’s eligibility for asylum, or (2) an extraordinary circumstance related to the delay in filing the application within the first year of entry. If an asylum seeker is able to demonstrate that he or she falls into one of these two exceptions “to the satisfaction of the asylum officer,” the applicant must then show that the application was filed within a “reasonable period of time” after the changed or extraordinary circumstance. See INA § 208(a)(2)(D); 8 C.F.R. § 208.4(a).

What can be a change in circumstance?

If asylum seekers can show “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum,” then they will only have to show that they applied within a reasonable period of time after the change in circumstance. The regulations indicate that a change in circumstance may include changes in conditions of the home country; changes in the applicant’s circumstances (including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution); or, if the applicant is a dependent in another person’s pending asylum application, the loss of the spousal or parent-child relationship. See 8 C.F.R. § 208.4(a)(4).

For LGBTQI asylum seekers, this can take many forms. For example, if an asylum seeker’s home country recently passed legislation that criminalized same-sex relationships or same-sex advocacy, or otherwise targets LGBTQI individuals, this could qualify as a change in circumstance. Additionally, a major change in how the country, including its police force, treats LGBTQI individuals could be a change in conditions at home. Unfortunately, many countries have had discriminatory laws on the books for years, even decades. Some laws banning same-sex relationships are holdovers from colonial rule. Much more likely for asylum seekers is a change in personal circumstances. Potential changes in circumstance could include being “outed” as LGBTQI at home, getting actively involved in LGBTQI advocacy groups, marrying a same-sex partner, or for transgender individuals, going through transition efforts, particularly gender-affirming surgery. The important thing for asylum seekers to understand is that it is critical to explain how this change in circumstance materially affects one’s eligibility for asylum. Or stated differently, why does this new event create a reasonable fear of persecution that did not exist prior to the event occurring?

What might be an extraordinary circumstance?

A second option for asylum seekers who are not applying within one year of their entry into the United States is to demonstrate that there is an extraordinary circumstance related to the delay in filing the application. The regulations suggest several potential extraordinary circumstances that could justify a delay in filing, including serious illness or mental or physical disability, legal disability, ineffective assistance of counsel, maintenance of Temporary Protected Status or another lawful status, or a technical error. This list provided in the regulations, like the list of changes in circumstance, is not exhaustive. See 8 CFR §208.4(a)(5).

LGBTQI asylum seekers can find themselves in situations where they may be able to demonstrate extraordinary circumstances related to their delay in filing. Perhaps the biggest group of asylum seekers who miss the one-year deadline are individuals who come to the United States on student visas or other temporary visas, and during their time in the U.S. either come out publicly or engage in advocacy around LGBTQI issues that subsequently creates a reasonable fear of returning home. In addition, an individual who enters the country as a minor (under the age of 18) may be able to apply because of legal disability.

Many LGBTQI asylum seekers may also have experienced trauma in their home country due to their identity. Some advocates have argued successfully that this is an extraordinary circumstance that justifies an application outside of the first year. Matter of J-A-, A XXX-XXX-234 (Arlington Immigration Court, April 27, 2012), was an important step forward in this area. The advocates in Matter of J-A- successfully argued that extreme sexual and physical violence against J-A- because of his sexual orientation caused extreme and chronic PTSD, which justified his late application (nearly 10 years after his entry into the United States).  This, combined with the fact that he entered the U.S. as a legal minor, led Judge Bryant of the Arlington Immigration Court to conclude that there was an extraordinary circumstance justifying the late filing. But it is important to note that arguments relying on PTSD or other mental health conditions are not always successful. However, rulings like the one in Matter of J-A- give hope that the law might actually catch up with the reality of the psychological impact caused by severe persecution based on LGBTQI identity. Again, the important thing for asylum seekers to focus on here is how the extraordinary circumstance directly caused the delay in filing.

What is a reasonable period of time?

If asylum seekers are able to show that there has been a change in circumstance or an extraordinary circumstance, they are permitted to file the asylum application within a reasonable period of time.  There is no specified reasonable time in IIRIRA, but the simple answer is that one should file as soon as possible.

So, while the one year bar can be concerning to asylum seekers and has been particularly harmful to LGBTQI asylum seekers, there is hope.  While other options, like Withholding of Removal, may be available to individuals outside the one year bar, it is incumbent upon asylum seekers and advocates to make every effort to help the adjudicator understand the complexities faced by the LGBTQI community and to build effective justifications for filing for asylum outside the one-year period. The exceptions provide some hope to an otherwise devastating change in the immigration law.

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The Asylum Office Is Getting Tougher (Probably)

by Jason Dzubow on February 7, 2018

Last week, the Asylum Division changed the way it processes cases. Instead of interviewing asylum cases in the order they were filed (first-in, first-out), cases will now be interviewed on a last-in, first-out or LI-FO basis. We’ve been learning more about the reasons for this change, and I want to share what I’ve heard here. But before I get to that, I want to discuss another important change that has recently become apparent: The dramatic drop in grant rates for cases at most asylum offices.

The new Asylum Officer training regimen.

The below chart compares asylum approval rates at the various asylum offices for the months of December 2016 and December 2017 (the most recent month when data is available). Admittedly, this is a snapshot of events, and an imperfect snapshot at that. Nevertheless, I think it illustrates a larger trend.

The left number in each column represents the number of cases approved during the month. The number on the right is the number of cases completed. The percentage shows the percentage of cases approved in that office. So in December 2016, Arlington approved 89 cases out of 317 completed, meaning that 28% of completed cases were approved. Conversely, 72% of applicants were denied asylum or referred to court, but that includes people who failed to show up for their interview, so the denial rate for people who actually appear is not as bad as it seems from the chart (as they say, in life, eighty percent of success is showing up). With that out of the way, here are the stats:

Asylum Office December 2016 December 2017
Arlington 89/317 (28%) 80/276 (29%)
Boston 45/108 (42%) 27/168 (16%)
Chicago 75/186 (40%) 80/362 (22%)
Houston 28/119 (24%) 58/437 (13%)
Los Angeles 258/528 (49%) 389/1195 (33%)
Miami 73/243 (30%) 76/650 (12%)
Newark 118/358 (33%) 155/866 (18%)
New York 103/496 (21%) 87/858 (10%)
New Orleans 41/83 (49%) 83/188 (44%)
San Francisco 219/303 (72%) 196/429 (46%)
United States 1049/2741 (38.3%) 1231/5429 (22.7%)

 

So you can see that asylum grant rates are pretty dramatically down at most offices, and that for the entire country, they are down about 40% (from 38.3% to 22.7%) (you can see the source for these statistics here for 2016 and here for 2017). While the various grant rates could represent anomalies, they comport with larger trends, as shown in the next chart, which lists grant rates for the U.S. as a whole over the last few years:

Fiscal Year Asylum Grant Rate
FY 2015   45%
FY 2016   41%
FY 2017   34%
FY 2018   26%

 

You can see from this chart that asylum grant rates have been dropping since FY 2015 (which began on October 1, 2014), but the decrease is more pronounced in the two most recent fiscal years (and of course, we are only a few months into FY 2018). Further, if the December 2017 data is any indicator, the grant rate is continuing to drop.

My first question–and be forewarned, I don’t really intend to answer these questions–is, Why is this happening? The temptation is to attribute the drop to President Trump’s anti-immigrant agenda, but I don’t find that explanation very convincing. First, grant rates began to fall long before Mr. Trump took office. Second, even after he was sworn in–in the second quarter of FY 2017–it takes months to implement new policies. Most asylum officers were hired pre-Trump, and that was especially true in FY 2017, since it takes time to hire and train new people. In addition, I have not observed any real changes in the pool of asylum officers that I meet (then again, the grant rate at my local office–Arlington–seems to have held steady, at least as illustrated in the first chart).

So if it’s not President Trump, what’s going on? One possibility–and I suspect this is the explanation that the Asylum Division favors–is that a higher portion of cases interviewed in recent years are meritless. In other words, as the backlog grew and delays became longer, people with weak cases were incentivized to file for asylum in order to get their employment authorization document (“EAD”). These people knew that their cases would take years, and so they filed mostly to obtain some status here and work legally. But now, as more and more of these people are reaching the interview stage, their cases are being denied. There is some evidence for this theory–according to the Asylum Division, of the 314,000 backlogged asylum cases, 50,000+ applications were filed more than 10 years after the applicant entered the United States. For various reasons, such cases are more likely to be meritless, and–even if they are legitimate–they are more likely to be denied due to the one year asylum filing deadline.

If this second explanation is correct, then perhaps there will be a silver lining to the recent change in how asylum cases are interviewed. If people get faster interviews, maybe fewer meritless applicants will seek asylum.

Whether or not this will work, we shall see. But a test is soon coming (probably). The Trump Administration has ended TPS (Temporary Protected Status) for El Salvador and other countries. It has also terminated the DACA program. This means that in the absence of a legislative fix, hundreds of thousands of people will have no way to avoid deportation other than to go into hiding or to seek asylum. You can bet that many of them will seek asylum (and indeed, given the violent countries from whence they came, many have legitimate reasons to fear return).

We know from a recent meeting at the Arlington Asylum Office that the end of TPS and DACA were two reasons for changing to the FI-LO process. But whether this new procedure will stem the potential tidal wave of applications, I have my doubts.

All this brings us to the final question (for today)–What does this mean for asylum seekers? As usual, I don’t have a good answer. People filing now can probably expect an interview soon and should submit all evidence so they are ready for the interview. However, if volume is too high, not everyone will get an interview. My impression is that if the interview is not scheduled within 21 days of receiving the receipt, then the case will “disappear” and will only be interviewed once the Asylum Office starts working on backlogged cases. It’s likely that some cases will disappear, since the number of people seeking asylum is still out-pacing the government’s ability to interview applicants. Also, there are (once again) increasing numbers of asylum seekers arriving at the U.S./Mexico border, and the Asylum Offices must devote resources to those cases as well.

Local offices control the expedite process and the short list, and it seems that most offices will continue to offer those options. However, the Asylum Division is expecting fewer “no shows” with the new system, and so there may be less slots available for expedited or short-listed cases.

Finally, under the pre-December 2014 system, when an asylum case was sent to Immigration Court, the judge would schedule a quick hearing date for any applicant who had not yet received his EAD (in an effort to dissuade meritless applicants from seeking asylum merely to get an EAD). It looks like the Immigration Courts will again be doing this same thing, and so if you have a fast asylum interview and you are referred to court, you should be prepared for a fast hearing date in court.

For what it’s worth, my impression is that the Asylum Division is well aware of the pain it will inflict by re-ordering how asylum cases are interviewed. But they are looking at the “big picture” and they hope that changing to a FI-LO system will reduce meritless applications and ultimately benefit legitimate asylum seekers. I hope they are correct, but until then, I fear things will be worse before they get better.

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Bye Bye Scheduling Bulletin, Hello Chaos!

by Jason Dzubow on February 1, 2018

By now, you may have heard that the Asylum Division–in a surprise move–has changed the order in which cases will be interviewed. This means that new cases, filed after January 29, 2018, will be interviewed before older, pending cases.

“Sorry, the front of the line is now over there… I guess…”

To understand what’s happening, let’s review a bit of history. Since the mid-1990s, when an asylum case was submitted, the Asylum Office attempted to interview the applicant within a couple months. But as the number of applicants increased, the Asylum Office was less able to handle the volume. Further, starting in maybe 2011 or 2012, large number of asylum seekers began arriving at the U.S./Mexico border and requesting protection (many of these applicants were “unaccompanied minors” – i.e., children without parents – whose cases received priority). In addition to their normal workload, Asylum Officers were assigned to assess these border cases and administer a credible fear interview (an initial evaluation of asylum eligibility). All this resulted in an inability to keep up with affirmative asylum applications. The result was The Backlog.

In my part of the country, the backlog began in probably 2012. We would mail asylum cases as normal. Some applicants would be interviewed within two months; other cases disappeared. Of the cases we mailed, about 60% were interviewed and 40% disappeared.

Although the Asylum Division recognized the problem, they were reluctant to change the way they processed cases. Their fear was that if they interviewed cases in the order received, all cases would move slowly. This would create an incentive for more people to submit fraudulent applications, knowing that their interview would be delayed and that they could remain in the United States for years with a work permit (150 days after she files for asylum, an applicant can apply for an employment authorization document). The problem, of course, was that cases in the backlog (the ones that “disappeared”) would never be adjudicated, and would remain in limbo forever.

Then, in December 2014, the Asylum Division decided to try a new approach: They would interview the oldest cases first. In a sense, this was more fair, as it gave people with “disappeared” cases a chance for an interview. At about the same time, the Asylum Division created the Affirmative Asylum Scheduling Bulletin. Now, for each asylum office, we could see who was being interviewed based on the date the application was filed. This at least gave applicants some sense of how their cases were progressing.

Whether the new system worked, or whether it encouraged fraudulent applicants who only wanted work permits, I do not know. I do know that cases have been moving very slowly since December 2014. I believe this is largely due to the prioritization of cases–unaccompanied minors and credible fear interviews received priority over “regular” asylum applicants, and since there were a lot of these, the Asylum Office has been crawling through its backlog of regular cases. We could see what was happening (or not happening) on the Affirmative Asylum Scheduling Bulletin.

Enter, the Trump Administration, which views asylum seekers as fraudsters. USCIS (which oversees the Asylum Division) announced the change in policy yesterday, and the change is retroactive–all cases filed on or after January 29, 2018 will (supposedly) be interviewed within 21 days. There is, of course, a caveat: “Workload priorities related to border enforcement may affect our ability to schedule all new applications for an interview within 21 days,” says USCIS.

According to USCIS, the new priorities are as follows:

  • First priority: Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS.
  • Second priority: Applications that have been pending 21 days or less.
  • Third priority: All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings

From this, it appears that unaccompanied minors will no longer be a priority, which may make things faster for “regular” applicants. Also, it appears that the system for requesting expedited interviews will remain in place: “Asylum office directors may consider, on a case-by-case basis, an urgent request to be scheduled for an interview outside of the priority order listed above” (I previously wrote about expediting affirmative asylum cases here). Finally, since cases are being interviewed on a “last in, first out” basis, there is no longer a need for the Asylum Office Scheduling Bulletin, and so USCIS has eliminated it (though wouldn’t it be nice if they used that website to provided updated information about what they are doing?).

USCIS has made the reasons for the change pretty clear: “Returning to a ‘last in, first out’ interview schedule will allow USCIS to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings.” Presumably, it will also allow legitimate cases to be granted more quickly, which may be good news for people planning to file for asylum in the near future.

Rumor has it that other changes are coming to the asylum system, but what they are, we do not yet know. Given the government’s view that many asylum seekers are fraudsters, I can’t imagine that such changes–if any–will be positive, but we shall see.

There is a lot to say about this new change, but for now, I want to urge people to remain cautious. We will have to see how this plays out in the coming weeks and months. Obviously, if you are a new asylum seeker, or if you filed recently, you need to complete your entire case now, so that you are ready if an interview is scheduled quickly. If you have a case in the backlog, and are now losing hope of ever receiving an interview, you should try to be patient–it may be that because unaccompanied minors are no longer a priority, and because fewer asylum seekers are arriving at the Southern border, cases will begin moving more quickly. Only time will tell, and if I have any news, I will try to post it here.

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A Poetic Response to the State of Our Union

by Jason Dzubow on January 31, 2018

Last night was the State of the Union address, a speech presidents give before Congress each year to assess where our country has been and where we are going. President Trump’s speech highlighted one of his favorite themes–the dangers to our economy and our security posed by non-citizens.

I recently came across a poem by Brian Bilston, which eloquently rebuts the President’s anti-immigrant and anti-refugee talking points, and so I wanted to share it here. If you would like to learn more about Mr. Bilston, check out his website. Without further ado, enjoy–

Refugees

They have no need of our help
So do not tell me
These haggard faces could belong to you or me
Should life have dealt a different hand
We need to see them for who they really are
Chancers and scroungers
Layabouts and loungers
With bombs up their sleeves
Cut-throats and thieves
They are not
Welcome here
We should make them
Go back to where they came from
They cannot
Share our food
Share our homes
Share our countries
Instead let us
Build a wall to keep them out
It is not okay to say
These are people just like us
A place should only belong to those who are born there
Do not be so stupid to think that
The world can be looked at another way
(now read from bottom to top)

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Asylum and the Limits of Mercy in a Nation of Laws

by Jason Dzubow on January 25, 2018

The case of Ded Rranxburgaj, a rejected Albanian asylum seeker living in Detroit, has been getting attention lately. Mr. Rranxburgaj arrived in the United States in about 2001 and applied for asylum. An Immigration Judge rejected his claim in 2006, and the BIA denied his appeal in 2009. Instead of deporting him, the government allowed him to remain in the U.S. for humanitarian reasons: He was the primary caretaker for his wife, who has multiple sclerosis. Mr. Rranxburgaj’s wife is wheelchair bound, and she recently suffered a stroke. Doctors say that she is too sick to travel.

Rev. Zundel: When life gives you ICE, make ice cream.

There seems little doubt that Mr. Rranxburgaj is a “decent, family man” who does not pose a danger to the United States. According to his wife, he is a “very good husband” who helps her “take a shower… change clothes [and] cook.” Besides his wife, he has two sons in the United States–a DACA recipient and a U.S. citizen.

Mr. Rranxburgaj was living here peacefully since his case ended in 2009, but events took a turn for the worse last year when ICE decided to implement his removal order. According to an ICE spokesman: “In October 2017, ICE allowed Mr. Rranxburgaj to remain free from custody while making preparations for his departure pursuant to the judge’s order, which he had satisfactorily done.” “He was again instructed to report to ICE [to be deported this week], but did not report as instructed.”

Instead, Mr. Rranxburgaj took refuge in the Central United Methodist Church in downtown Detroit. Since ICE generally does not arrest people from churches, Mr. Rranxburgaj apparently hopes to avoid removal by remaining there, at least until something can be done about his deportation order. His lawyer has requested a stay of removal from ICE, but there is no decision yet, and ICE does not appear willing to play nice. An agency spokesman says that Mr. Rranxburgaj is considered a “fugitive.”

Meanwhile, the church is standing with Mr. Rranxburgaj and his family. The Pastor, Rev. Dr. Jill Zundel, said that the decision was in line with the teachings of Jesus, who had “compassion for those who seek new hope in a new land.” Rev. Zundel, who–if I can say this about a member of the clergy–seems like a real bad ass, has a tattoo on her arm that reads, “When injustice becomes law, resistance becomes duty.”

There are different ways to look at Mr. Rranxburgaj’s case. On the one hand, he is a man who has been in the United States for 17 years, his immediate family members are all here, he takes care of his sick wife, and he does not pose a danger to our country. So he should be allowed to stay. On the other hand, he is a man whose asylum case and appeal were rejected, and who is violating the law by remaining in our country. Allowing him to remain here will only encourage others to follow his lead. Therefore, he must go.

In short, Mr. Rranxburgaj’s story lays bare the conflict between enforcing the immigration law and showing mercy in a sympathetic case.

This situation reminds me of another–much older–conflict between law and mercy (or, more accurately, between law and justice, but I think the concepts of mercy and justice are closely related). After he was unjustly sentenced to death, Socrates sat in his cell waiting to be executed. His friend Crito arrived to help him escape. In the ensuing dialogue (creatively named The Crito), Socrates argues that he cannot violate a law, even an unjust law. He says that he entered into a social contract with “The Law” by choosing to live in Athens, and he gained benefits accordingly. To violate the rules now would undermine the social contract and ultimately destroy the city. Rather than breaking the law to escape, Socrates believed he should try to persuade the authorities to let him go. Failing that, he must accept death, since he could not justly attack The Law (by escaping) on account of having been unjustly convicted. In other words, Socrates disagrees with Rev. Zundel’s tattoo.

So where does this leave us?

I must admit that my sympathies lie with Mr. Rranxburgaj and his family. They are not doing anyone any harm. What is the benefit of ripping the family apart, especially considering the wife’s vulnerable position? Thomas Aquinas writes that “Mercy without justice is the mother of dissolution; justice without mercy is cruelty.” In Mr. Rranxburgaj’s case, fealty to the abstract concept of “The Law” seems cruel in the face of family separation and the wife’s illness.

On the macro level, Mr. Rranxburgaj’s case begs the question whether there is room for mercy (justice?) in the enforcement of our nation’s immigration laws. Well, why shouldn’t there be? Every person convicted of a crime is not subject to the maximum penalty. Indeed, due to mitigating factors and prosecutorial discretion, very few criminals actually receive the maximum sentence. The same is true for government enforcement in the civil arena: Not everyone who breaks the speed limit receives a ticket. If there is room for mercy and justice in the implementation of the criminal and civil law, why can’t the immigration laws be interpreted in a similar manner?

Unfortunately, that is not the view of the Trump Administration, which seems hell-bent on enforcement. To be fair, restricting immigration was an important plank of Mr. Trump’s campaign, and so it makes sense that he would crack down on illegal immigration. However, in Mr. Rranxburgaj’s case, and in many other instances, the Administration’s policies defy common sense. In the rush to implement The Law, the Administration has lost sight of justice. And of humanity.

When our government replaces mercy with cruelty, it is not only “illegals” who will suffer. We all will. And so it is heartening to see brave people like Rev. Zundel and her congregation standing up for justice, even when it sometimes means disobeying the law.

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The law requires that people who wish to seek asylum in the United States file their applications within one year of arriving here. See INA § 208(a)(2)(B). Those who fail to timely file are barred from asylum unless they meet an exception to the rule (they may still qualify for other—lesser—humanitarian benefits such as Withholding of Removal and relief under the United Nations Convention Against Torture).

If you arrived in the U.S. on this day, you are still eligible to apply for asylum, even if it seems like a hundred years ago.

So why do we have this rule? And what are the exceptions?

Congress created the one-year bar in 1996. Its ostensible purpose is to prevent fraud. If you really fear return to your home country, the theory goes, one year should be enough time to figure things out and get your application filed.

For most people, I suppose that this is true—they can ask questions, find help, and file for asylum within a year. But this is easier for some than for others. People who are less educated, people whose life experiences have taught them to mistrust and avoid authority, people who are isolated and socially disconnected, people who are depressed; such people might have a harder time with the one-year bar (and of course, many of these characteristics are common among asylum seekers). Others will have an easier time: Well-educated people, people who speak English, people who have a certain level of self-confidence, and people who are engaged with the community.

There are also certain populations that seem to have difficulty with the one-year rule. At least in my experience, many LGBT asylum cases were filed after the one-year period. I suspect there are several reasons for this. For one, an immigrant’s primary connection to mainstream America is her community in the U.S. But if she is afraid to reveal her sexuality to her countrymen living here, and she cannot get their help with the asylum process, she may be unable to file on time. Also, there is the coming-out process itself. People in certain countries may not have even conceptualized themselves as gay, and so the process of accepting their own sexuality, telling others, and then applying for asylum may be lengthy and difficult.

Asylum seekers like those discussed above are sometimes blocked by the one-year rule, but in these cases, the rule is not preventing fraud; it is harming bona fide applicants.

Where the rule seems more likely to achieve its intended purpose is the case of the alien who has spent years in the United States without seeking asylum, and now finds himself in removal proceedings. Such aliens often file for asylum as a last-ditch effort to remain in the U.S. (or at least delay their deportation). Many people from Mexico and Central America are in this position, and the one-year rule often blocks them from obtaining asylum (in addition, such applicants often fear harm from criminals; this type of harm does not fit easily within the asylum framework and contributes to the high denial rate for such cases).

Although there may be situations where the one-year bar prevents fraud, the vast majority of immigration lawyers—including this one—think it does little to block fake cases, and often times prevents legitimate asylum seekers from obtaining the protection they need. In short, we hate this rule, and if I ever become king, we will find other, more effective ways, to fight fraud. Until then, however, we have to live with it.

So for those who have missed the one-year filing deadline, what to do?

There are two exceptions to the one-year rule: Changed circumstances and extraordinary circumstances. See INA § 208(a)(2)(D). If you meet either of these exceptions, you may still be eligible for asylum. Federal regulations flesh out the meaning of these concepts. See 8 C.F.R. §§ 208.4(a)(4) & (5). First, changed circumstances–

(4)(i) The term “changed circumstances” … refer to circumstances materially affecting the applicant’s eligibility for asylum. They may include, but are not limited to: (A) Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; (B) Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or (C) In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.

(ii) The applicant shall file an asylum application within a reasonable period given those “changed circumstances.” If the applicant can establish that he or she did not become aware of the changed circumstances until after they occurred, such delayed awareness shall be taken into account in determining what constitutes a “reasonable period.”

It is a bit unclear how long this “reasonable period” is. A few months is probably (but no guarantee) ok, but six months is probably too long. So if there are changed circumstances in your case, the sooner you file for asylum, the better.

The regulations also define extraordinary circumstances–

(5) The term “extraordinary circumstances” … shall refer to events or factors directly related to the failure to meet the 1-year deadline. Such circumstances may excuse the failure to file within the 1-year period as long as the alien filed the application within a reasonable period given those circumstances. The burden of proof is on the applicant to establish… that the circumstances were not intentionally created by the alien through his or her own action or inaction, that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and that the delay was reasonable under the circumstances. Those circumstances may include but are not limited to:

(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;

(ii) Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;

(iii) Ineffective assistance of counsel….

(iv) The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;

(v) The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and

(vi) The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.

Again, if you have extraordinary circumstances, you must file within a “reasonable period.” How long you have to file has not been clearly defined, so the sooner you file, the safer you will be in terms of the one-year bar.

When it comes to asylum, the best bet is to file within one year of arrival. But if you have missed that deadline, there are exceptions to the rule. These exceptions can be tricky, and so it would probably be wise to talk to a lawyer if you are filing late. It is always a shame when a strong asylum case is ruined by a one-year issue. Keep this deadline (emphasis on “dead”) in mind, and file on time if you can.

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Waiting Is the Hardest Part

by Jason Dzubow on January 9, 2018

The asylum backlog–both in court and at the asylum office–is years long. Hundreds of thousands of applicants are waiting, seemingly forever, to present their cases and to receive decisions. Many of these people are separated from children and spouses. Even for those who are not separated from family, the lengthy waits and uncertain outcome can have a serious psychological impact. Indeed, the human tragedy of the asylum backlog is apparent to anyone involved with the system.

Some liminal spaces are more fun than others.

A recent article by Professor Bridget M. Haas, Citizens-in-Waiting, Deportees-in-Waiting, Power, Temporality, and Suffering in the U.S. Asylum System, helps quantify the psychological suffering of those who wait. Prof. Haas followed 26 asylum seekers from seven countries between 2009 and 2012. Only four of the study participants received asylum from the Asylum Office. Twenty-two were referred to court, and the majority of those had their asylum cases denied. Seven of Prof. Haas’s subjects left the U.S. or were deported during the period of her study.

The Professor’s findings largely comport with what you might expect–

For asylum seekers, my data demonstrate that the liminality associated with asylum—of being “betwixt and between” a particular status or identity—is best understood not as a time of transition but rather as a time of rupture, as “a discontinuity of subjective time, in which powerful forces operate to change perceptions of time, space, and personal values.” The discontinuity wrought by asylum-seeking manifests as suspended life.

In other words, the uncertainty of the waiting period leaves asylum applicants unable to move forward with their lives. They are literally stuck waiting. The problem seems to be compounded by the disconnect between asylum seekers’ expectations and the reality of the asylum process—

Most participants had expected the asylum process to last “a couple of days” or “a matter of weeks.” That the process… would be such an arduous and protracted one was beyond their imaginations. Before filing an asylum application… participants had not conceived of a scenario in which their stories and personal histories would be denied credibility or be deemed undeserving of protection…. Ultimately, the disjuncture between expectations of treatment in the United States and the reality they faced was a source of confusion and distress for asylum seekers.

Prof. Haas characterizes the asylum waiting period as one of “existential limbo” where “the very viability of their lives [is] in a state of profound uncertainty.” This manifests in different ways, including “extreme anxiety,” “powerlessness,” and even suicidal thoughts. Asylum applicants had a “sense of being beaten down” by the process. They felt “hopelessness, despair, and futility.” Many felt traumatized by the wait, and “experienced waiting itself… as a form of violence,” which “inflict[ed] enduring psychic distress.” Also, “waiting in limbo was understood as traumatic because of the life-and-death stakes it inhered for asylum seekers and the profound anxiety this produced.”

The state of limbo often prevents asylum seekers from “taking future-oriented actions,” such as furthering their education, because of a “sense that these actions would be done in vain if [they] were to be deported.”

All this rings true for me. I observe my clients’ suffering first hand, and in some cases–especially for those separated from young children–the damage caused by the asylum process can be worse than the harm caused by the persecution.

Prof. Haas writes about her subjects’ coping methods. She notes that “asylum seekers often engaged in activities that offered a distraction from the pain of waiting.” “Other asylum seekers attempted to resist suffering through the refusal to acknowledge the present state of limbo.” Still others turn to their religion for a sense of hope.

These observations align with how I see my clients coping. I also think it is helpful to try to exert some control over the situation. For example, asylum seekers can attempt to expedite their cases. Even if this does not succeed, it provides an avenue for action, which may be better than passively waiting. Asylum seekers can also try to overcome the inertia of limbo by “taking future-oriented actions,” even if that is difficult: Take a class, go to therapy, buy a house, start a family. In a case of giving advice that I probably could not accept myself, I advise my clients to live as if they will be staying here permanently. It’s not easy, but it beats the alternative (of going insane).

Finally, Prof. Haas’s article has prompted me to think about the concept of “liminality” in asylum. The word “liminal” derives from the Latin “limen,” meaning “threshold” or doorway. It refers to the in-between times and places in life.

In Judaism, and I imagine in many other religions, liminal spaces are often viewed as holy. We place a mezuzah (a decorative case containing verses from the Torah) in the doorway of our home. We get married under a chuppah (a temporary canopy that symbolizes the new home the couple will create). We Jews spent 40 years wandering the dessert in order to transform from slaves to free people. And of course, the Bar or Bat Mitzvah marks the traditional transition from child to adult.

Who are these rituals for? And how do they help? Prior to the Exodus, when G-d decided to kill the first born sons of Egypt, G-d instructed the Jews to place blood on their door posts, so the Angel of Death would pass over their homes. One rabbinic discourse explores whether the blood was on the outside or the inside of the doors. Was it meant for G-d, the Egyptians or the Jews? I like the idea that the blood was on the inside of the door, that it was meant to remind the Jewish people of why we were being spared, and of the sacrifice that all Egyptians were making for our freedom. I think there is value in such reminders.

Perhaps by specifically noting these liminal times as transitory, and by recognizing their transformative nature, we can more easily endure the waiting. Whether it is even possible to view the asylum wait time in these terms, I do not know. But one way or another, this period will end. Each of us has only so much control over our own destinies. For asylum seekers, the future is more uncertain than for many others. We are all left to do our best in the time that we have. Put another way, we are all precarious fiddlers on the roof, and so we might as well play the best song that we can.

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Arrested and Charged with Lying in an Asylum Case

by Jason Dzubow on January 3, 2018

Last month, my client was arrested by the FBI and charged with visa fraud, which carries a maximum penalty of 10 years in prison. He stands accused of lying on his I-589 asylum application and at his asylum interview. The client was held for a day or two and then released with instructions to appear in federal court.

If rich white guys can (theoretically) get into trouble for lying, you can too. So tell the truth!

My client’s case is both a cautionary tale and a sign of the times, so I wanted to discuss it here. But I am somewhat limited in what I can say, given that he has an active criminal case (not to mention a pending asylum case).

The charging documents in the criminal case allege that my client traveled from his home country, Country A, to a third country, Country B, and registered with the United Nations using a UNHCR Refugee Resettlement Form (“RRF”) in 2010. The RRF allegedly includes a photo of my client and contact information for him in Country B. The United Nations tried several times to reach the client in 2014 and 2015, but when he could not be reached, the UN closed his refugee resettlement case.

The documents also allege that my client applied for a non-immigrant visa to the United States, and then came to this country in 2013. After arriving in the U.S., my client applied for asylum using form I-589.

The asylum form, Part C, Question 2.B., asks whether “you, your spouse, your children, your parents, or your siblings ever applied for or received any lawful status in any country other than the one from which you are now claiming asylum?” If the answer is “yes,” the applicant must provide “the name of each country and the length of stay, the person’s status while there, the reason for leaving, whether or not the person is entitled to return for lawful residence purposes, and whether the person applied for refugee status or for asylum while there, and if not, why he or she did not do so.” According to the charging document, my client did not inform USCIS that he applied for refugee status while in Country B. The FBI charges that he deliberately omitted this information in order to conceal his past travels or possible legal status in Country B.

The charging documents also refer to my client’s interview at the asylum office. According to the documents, the Asylum Officer asked whether my client had been in Country B, and he denied having ever been there.

Based on the information on the form and his testimony at the interview, the charging documents allege that my client lied under oath, and that his lies constitute visa fraud in violation of 18 U.S.C. § 1546(a).

Whether or not the government has a strong case against my client, and my own opinion of his case (and his veracity) are not issues I can discuss here. Instead, I want to talk about two other points. First, what this charge means for asylum seekers in general, and second, whether my client’s criminal case represents a new trend from the Trump Administration or is simply business as usual.

First, what does it mean that an asylum seeker can be charged with a crime for allegedly lying on his application? In fact, this is nothing new. The signature page of the asylum form clearly indicates (in language that no one ever bothers to read) that lying on the form carries criminal and immigration consequences, including possible imprisonment of up to 25 years.

Frankly, I am not all that sympathetic to people who lie to obtain immigration status in the United States. Our asylum system was created to help people fleeing persecution. Asylum seekers who lie damage the integrity of that system and erode public confidence in the asylum process. Worst of all, they harm legitimate asylum applicants by causing their cases to move more slowly and by making asylum more difficult to win. Coming to a new country and requesting asylum comes with certain obligations, such as learning the rules of the new country and following those rules, and that is what asylum seekers must do.

On the other hand, I do understand why some people lie. Many asylum seekers come from countries where the government is little more than a criminal institution. They have no faith in government because their life experience teaches them otherwise. To survive in such places, people must regularly lie to their governments or pay bribes to get things done. It’s not surprising that when such people reach the U.S., they have little compunction about lying on their immigration forms.

Further, many people coming to the United States are at the mercy of the community members they know who are already here. If such people are honest, informed, and willing to help, asylum seekers will get good advice. But if the community members happen to be dishonest or ill-informed, or if they are trying to take advantage of their countrymen (as happens all too often), the asylum seekers may be convinced to lie, even when it is against their own best interests. In many cases, the “lies” are grounded in naivete rather than mendacity. They are more a product of bad luck than moral turpitude. But the rules is the rules, and people who do not follow the rules may have to face the consequences.

My second question is whether the criminal case against my client is a sign that the Trump Administration is ramping up prosecutions against asylum seekers?

One anecdote does not a trend make. And as usual, the best source of statistical information is TRAC Immigration. TRAC’s most recent report about prosecutions for immigration violations (current as of October 2017) reveals something of a mixed bag.

Prosecutions for all immigration violations are up 3.4% from 2016, and such prosecutions have been on an upward trajectory since about April 2017, but they are still significantly below the peak period of immigration prosecutions in 2012. The vast majority of these prosecutions relate to Re-entry of a Deported Alien (8 U.S.C. § 1326 – 1,551 cases filed in October 2017) and Bringing In and Harboring Certain Aliens (8 U.S.C. § 1324 – 295 cases filed in October 2017). A minority of prosecutions (54 cases) were filed under 8 U.S.C. § 1546 (the statute my client was charged under), and another dozen or so cases were filed based on other fraud-related charges (we do not know how many of these cases involved asylum seekers, and how many involved other types of immigration fraud).

For comparison’s sake, the most recent data shows that non-citizens are applying for asylum at the rate of about 12,000 per month (this only counts affirmative cases, not court cases), so only a very small percentage (about 0.6% at most–and probably much less) of asylum seekers are being criminally charged with fraud. Further, according to the TRAC data, the number of aliens charged under 8 U.S.C. § 1546 has actually declined over the past year.

So the short answer is probably that, while prosecutions for immigration fraud in general are on the increase, in absolute numbers, very few people are being charged, and there is (so far) no real evidence pointing to an increase in prosecutions for asylum fraud. Of course, the best way to ensure that you don’t defy the odds and end up in criminal court is to tell the truth.

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Immigration Judges Revolt Against Trump Administration

by Jason Dzubow on December 19, 2017

In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.

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On the Benefits of Having a Lawyer

by Jason Dzubow on December 11, 2017

A recent op-ed in the Wall Street Journal (“Immigrants Need Better Protection–From Their Lawyers” by Professor Benjamin Edwards) laments the poor quality of immigration attorneys, and postulates that as a group, “the private immigration bar now contains the worst lawyers in all of law.”

It’s easy to know which barber to choose (hint: Barber A), but finding a good immigration lawyer can be more challenging.

The author’s primary solution to the problem of “incompetent” and “predatory” lawyers is to track the success rate of each attorney and then make that information public. In this way, potential customers (i.e., people being deported) can make more informed decisions about their choice of counsel.

Among practicing lawyers, Prof. Edwards’s solution was largely panned as unworkable, ivory-tower thinking. While I generally agree that there is a problem (which I’ve written about in a charmingly-titled piece called, Do Immigration Lawyers Suck?), I also agree with my colleagues that Prof. Edwards’s solution is unworkable (if you’re interested in why it is unworkable, here are some thoughts from Jennifer Minear at AILA).

While some immigration lawyers are less-than qualified for their jobs, it is none-the-less true that having a lawyer for an asylum case significantly increases the likelihood of a good outcome.

A new report from TRAC Immigration provides some specific data about asylum cases and representation. The report breaks down the statistics by country, which is quite helpful, as asylum seekers can look for their country, get a sense for how many of their landsmen are represented, and see the success rate for represented and unrepresented applicants. The report covers Immigration Court cases only (from FY 2012 to FY 2017), and does not include cases at the Asylum Office.

The bottom line is this: For almost all countries, asylum applicants with lawyers are two to four times more likely to win their cases in court, as compared to unrepresented applicants from the same country. There are, of course, some caveats.

One is that, people with good cases are more likely to have attorneys. This is because people with money, educated people, and people who speak English all have an advantage navigating the U.S. immigration system. Such people are more likely to find a lawyer, and they are also more able to present their cases. People who are detained, who are not educated, and who do not speak English will have a harder time presenting their cases, and will also be less able to obtain representation. In that sense, I think the statistics exaggerate the benefits of having an attorney.

But even considering these socio-economic factors, the difference between represented and unrepresented applicants is pretty significant, and in the face of these statistics, it’s hard to argue that lawyers don’t help, Prof. Edwards not-with-standing.

What’s also interesting here is that lawyers provide a multiplier effect on the likelihood of winning. So, for example, an unrepresented case from China has about a 21% chance of success, while a represented case has about an 82% chance of success—a difference of almost four times. And, of course, 82% is a lot better than 21%. A case from El Salvador, on the other hand, has only about a 4% chance of winning without a lawyer, but has almost a 17% chance for success with a lawyer—again, a difference of four times, but in absolute terms, the difference of 4% versus 17% is a lot less significant than 21% versus 82%. Put another way, when the average Chinese applicant hires an attorney for her asylum case, she appears to be getting a lot more for her money than the average Salvadoran applicant.

Why should this be? Why should a lawyer multiply the chances of winning rather than increase the likelihood of victory arithmetically by, say, 10 percentage points across the board (so that the Chinese applicant would go from a 21% chance of success to 31%, and the grant rate for Salvadorans would increase from 4% to 14%)?

The short answer is that I don’t know. Maybe one explanation is that asylum seekers from certain countries present claims that more easily fit within the legal parameters of our asylum system. So cases from China—which often involve political or religious persecution—are more amenable to a grant than cases from El Salvador, which often involve a fear of harm from criminals. Our asylum law quite clearly protects people fleeing religious or political persecution, but it offers little for people fleeing crime. Under this theory, lawyers representing Chinese applicants can help ensure that their cases are presented in a manner that meets the requirements for asylum. It is more difficult to do this for Salvadorans. Or put in more classic terms, even a great lawyer can’t make a silk purse from a sow’s ear.

Another interesting tidbit from the TRAC numbers is the level of representation in each community. Almost 96% of Chinese applicants had attorneys. Contrast that with Salvadorans, who were represented in only about 73% of cases. Looking at the top 10 source countries for asylum seekers, Haiti had the lowest rate of representation—only about 56% of Haitian asylum seekers had lawyers.

Finally, while it may be somewhat early to discuss trends since President Trump took the helm, the numbers for FY 2017 show an increase in the absolute number of asylum cases decided by Immigration Courts (from 22,312 in FY 2016 to 30,179 in FY 2017) and in the percentage of asylum cases denied (from 56.5% denied in FY 2016 to 61.8% denied in FY 2017). While these numbers are not encouraging, the upward trend in asylum denial rates actually began in FY 2012, under President Obama (denial rates have steadily risen from 44.5% in FY 2012 to 61.8% today).

So what are asylum seekers to make of all this? It seems to me that the most important take-away is that a lawyer in court can significantly increase the likelihood of success, as long as that lawyer is competent and makes an effort to help you with your case. I’ve written previously about the cost of a lawyer, and what the lawyer should do for you. I’ve also written about how to find a free lawyer if you cannot afford to hire one. If you are careful, if you ask questions, and if you make an effort to find an effective attorney, you can greatly increase the possibility of winning your asylum case in court.

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Asylum for People with TPS

by Jason Dzubow on November 29, 2017

In the last few weeks, the Trump Administration has moved to end Temporary Protected Status (“TPS”) for Nicaraguans and Haitians, and we can expect TPS programs for other countries to end as well. There are about 321,000 people with TPS in the U.S. Most (195,000) are from El Salvador. There are about 2,500 Nicaraguans with TPS and 57,000 Haitians.

Nicaraguan TPS Holders: One more year to party like it’s 1999.

The decision for Nicaraguan TPS came on November 6, 2017, though USCIS delayed the effective end-date of the program for 12 months “to allow for an orderly transition before the designation terminates on January 5, 2019.” Nicaraguan TPS went into effect in 1999, after Hurricane Mitch devastated the region.

The Department of Homeland Security (“DHS”) announced an end to the Haitian TPS program on November 20–

To allow for an orderly transition, the effective date of the termination of TPS for Haiti will be delayed 18 months. This will provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. It will also provide time for Haiti to prepare for the return and reintegration of their citizens…. Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the respective termination or extension periods.

USCIS also signaled the likely end of TPS for Honduras, but delayed the decision until later. “As a result of the inability to make a determination, the TPS designation for Honduras will be automatically extended for six months from the current January 5, 2018 date of expiration to the new expiration date of July 5, 2018.”

Given these changes, the fate of the remaining TPS beneficiaries is uncertain. “Recognizing the difficulty facing citizens of Nicaragua – and potentially citizens of other countries – who have received TPS designation for close to two decades,” Acting DHS Secretary Elaine Duke called on Congress to “enact a permanent solution for this inherently temporary program.” The idea that Congress will act to protect TPS beneficiaries seems unlikely, at best.

So if you have TPS and you are concerned about the end of the program, what can you do?

People losing TPS status potentially have a number of options, such as claims to U.S. citizenship, Cancellation of Removal, Adjustment of Status based on a family relationship or a job, a residency applications based on being a victim of a crime or human trafficking. Talk to a lawyer to review your specific situation and evaluate your eligibility (if you cannot afford a lawyer, there might be free services available to you).

For many TPS recipients, however, the only viable option may be asylum. To win asylum, an applicant must demonstrate that she faces a well-founded fear of persecution on account of her race, religion, nationality, political opinion or particular social group. In other words, to win an asylum case, you need to show that someone wants to harm you for one of these reasons. If you fear return because your country is generally crime-ridden or war-torn, that is probably not enough to win an asylum case. You need to show a specific threat based on a protected ground (I’ve written in more detail about this issue here).

Most of the “protected grounds” are pretty obvious. If someone in your country wants to harm you because they do not like your religion or race or political opinion, that is easy to understand. But what is a “particular social group”? The law defining particular social group or PSG is complex, and different courts have reached different conclusions about what constitutes a PSG. For purposes of this blog post, it is easier to give some examples of PSGs, and then if you think you might fall into one of these categories (or something similar), you can talk to a lawyer. Some common PSGs include members of a family or tribal group, LGBT individuals, women victims of FGM (female genital mutilation) or women who fear FGM, and people who are HIV positive. Other groups of people that some courts–but not others–have found to constitute a PSG include members of a profession (doctors, journalists, etc.), former police officers, former gang members, former U.S. embassy workers, street children, people with certain disabilities, people who face domestic violence, union members, witnesses/informants, tattooed youth, perceived wealthy individuals returning from abroad, and “Americanized” people. These last two PSG groups might be of particular interest to TPS recipients.

Creative lawyers (and asylum applicants) are coming up with new PSGs all the time, but if you can fit your case into a group that is already recognized as a PSG, that certainly increases the likelihood that your case will succeed.

To win asylum, you also need to show that someone (either the government or someone who the government is unable or unwilling to control) wants to “persecute” you on account of a protected ground. You will be shocked to know that the term “persecution” is not clearly defined by the law, and different courts have come up with different–and inconsistent–definitions. Persecution is usually physical harm, but it could be mental harm or even economic harm. An aggregation of different harmful events can constitute persecution.

In addition to all this, an asylum applicant must show that he filed for asylum within one year of entering the United States or that he meets an exception to this rule. I expect that this will be a particular issue for TPS recipients, since most have been here for years. If you have not filed within a year of entry and you do not meet an exception to the one-year rule, then you are not eligible for asylum. You may still qualify for other relief, which is similar to asylum but not as good: Withholding of Removal and Torture Convention relief.

One piece of good news is that TPS is considered “extraordinary circumstances” excusing the one-year asylum filing deadline. See 8 C.F.R. § 208.4(a)(5)(iv) (“The applicant maintained Temporary Protected Status… until a reasonable period before the filing of the asylum application.”). This means that it is probably important to apply for asylum before your TPS expires. Whether people who were in the U.S. unlawfully before they received TPS can meet an exception to the one-year rule, I am not sure, but for people in this situation who fear return to their country, it is certainly worth exploring.

Another possible exception to the one-year rule is “changed circumstances.” Maybe it was safe for you in your country, but then something changed, and now it is unsafe. If that happens, you need to file within a “reasonable time” after the change–hopefully, within a month or two. If you wait too long after the change, you will not meet this exception to the one-year rule.

For TPS recipients, asylum may be a last-ditch effort to remain in the U.S., and it may be difficult to win such a case. However, there are some advantages to seeking asylum. First, despite a crackdown on non-citizens, the Trump Administration has not moved to eliminate asylum. Such a move would be very difficult anyway, since asylum is written into the law (based on a treaty signed by the United States in 1968) and cannot be eliminated without Congressional action. So asylum should remain an option for the foreseeable future. Second, 150 days after you file for asylum, you can apply for a work permit. The work permit is valid for two years, and is renewable for the duration of the asylum case. Finally, the asylum process is slow. Normally, asylum delays are horrible for applicants (and for their attorneys), but if you are trying to delay your deportation until a new Administration comes along, asylum might do the trick.

If you have TPS, it is important to start considering your options now. Talk to a lawyer or a non-profit organization about your situation to see what you can do. Since we can’t expect much (besides trouble) from the government, non-citizens must use the tools at their disposal to protect themselves. Asylum is one such tool.

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The Secret Refugee History of Casablanca

by Jason Dzubow on November 21, 2017

This month marks the 75th anniversary of the Hollywood classic Casablanca. The move has been acclaimed as one of the great films of all time, and in my (correct) opinion, it contains the greatest scene in movie history (more on that later).

French refugee Madeleine Lebeau: “Vive la France!”

Probably, you know the basic story. It’s 1942. France has fallen to the Nazis, and some French colonies, including the city of Casablanca in Morocco, are under Vichy control (the Vichy government of France collaborated with the Nazis). Refugees, freedom fighters, Nazis, smugglers, and numerous others pass through Rick’s Café in Casablanca. Many are seeking papers to escape to Portugal and then to freedom in the New World (the film’s technical director, Robert Aisner, actually took this route himself after he escaped from a German prison camp).

Rick–the owner of the café–is an American ex-patriot (played by Humphrey Bogart) whose loyalties through much of the movie are ambiguous. One day, Rick’s former lover Ilsa (Ingrid Bergman) appears with her husband, resistance leader Victor Laszlo (Paul Henreid), and Rick and Ilsa have to make some relationship decisions (“Of all the gin joints in all the towns in all the world, she walks into mine.“). If you don’t know how the movie ends, I’m not going to tell you here–you should see it for yourself (and you can thank me later).

What’s less well-known about Casablanca is that many of the actors in the film were themselves refugees. Of 75 people who had bit parts and larger roles in Casablanca, almost all were immigrants of one kind or another. And of the 14 who got screen credit, 11 were foreign-born. Here is the story of some of them:

Conrad Veldt was a well-known German actor who opposed the Nazis and left Germany with his Jewish wife in 1933. Before he departed, he had to complete a questionnaire about his race. Even though he was not Jewish, he listed himself as a Jew. The government offered him an opportunity to divorce his wife and align himself with the Nazis, but he refused. Mr. Veldt moved to Britain where he performed in anti-Nazi films. He eventually came to the United States, where he wanted to help persuade the U.S. to enter the war. Mr. Veldt donated the better part of his personal fortune to Britain to assist with the war effort. He played Major Strasser, the primary bad guy in Casablanca.

S.Z. Sakall and his wife Anne Kardos became American citizens in 1946: “Mama and I are happy, happy people today.”

Lotte Palfi played a desperate woman selling her jewels to raise money. In her only line in the film, she asks for “just a little more, please?” Ms. Palfi was a leading stage actor in German, but fled in 1934 because she was Jewish. She hoped to find success in America, which she viewed as a “melting pot” where the “great majority of the people… had emigrated from other countries.” So she initially thought her German accent “shouldn’t be any hindrance to [her] acting career.” “Of course,” she wrote, “I couldn’t have been more wrong.” Ms. Palfi married fellow Casablanca actor Wolfgang Zilzer (who grew up in Germany and only learned of his American citizenship when he was trying to secure a visa to escape from Europe). The couple divorced after 50 years when he wanted to return to Germany at the end of his life and she refused to go back.

S.Z. Sakall played Carl the waiter in Casablanca. He was a Hungarian Jew who worked on stage and screen in his native country, and also in Austria and Germany. He lost three sisters and many other relatives in the Holocaust. Known for his comedic performances and his shaking jowls (one of the Warner brothers made him adopt the nickname “Cuddles”), Mr. Sakall achieved success in Germany using broken German, and in America using broken English. He arrived in the U.S. just before the war, in May 1939, and appeared in 30 movies between 1940 and 1950. Mr. Sakall was immensely proud of his United States citizenship, and kept his naturalization documents on the mantel in his living room.

Hans Twardowski played a German officer in Casablanca. He began his career as a supporting actor in The Cabinet of Doctor Calgary, but had to flee Germany because he was gay. In the U.S., Mr. Twardowski was type-cast as a Nazi, and never worked as an actor after the war ended, but he always dreamed of returning to the stage.

Helmut Dantine played a young Bulgarian husband trying to earn travel money at the roulette table. In Austria, he led an anti-Nazi youth movement, and was rounded up after Hitler annexed his country in 1938. Mr. Dantine was only 19 years old. He spent three months in a concentration camp before he managed to get released based on family connections and medical reasons. His parents immediately sent him to Los Angeles, where they had a family friend. In the U.S., he worked as an actor and a producer.

Peter Lorre, born Laszlo Lowenstein in Hungary in 1904, played Ugarte, a black marketeer who hands Rick the letters of transit that Victor and Ilsa need to escape from Casablanca. Mr. Lorre moved with his family to Austria when he was young, and he began his career there. He eventually migrated to Germany where he acted on stage and screen. His breakout role was as a killer in Fritz Lang’s 1931 film M. With Hitler’s ascension to power, Mr. Lorre left Germany in 1933, and made his way to France, Britain, and eventually, the U.S., where he settled in Hollywood.

Anti-Nazi actor Conrad Veidt played a Nazi in Casablanca.

Marcel Dalio, who played Emil the croupier, had been a star in French cinema (Rules of the Game and La Grande Illusion), but fled the country ahead of the Nazi invasion (he was Jewish and feared persecution). The Vichy government used Mr. Dalio’s image to depict the stereotypical Jew on propaganda posters, but in the U.S., he was reduced to playing minor roles. Upon learning of the posters, he quipped, “At least I had star billing on the poster.” Mr. Dalio was promoted to playing Renaud (in the movie, this character was Renault) on the short-lived and largely forgotten Casablanca television serious (1955-56). Mr. Dalio’s mother and sisters were murdered at Auschwitz.

Madeleine Lebeau was the French woman seen crying (real tears) and shouting “Vive la France” during the greatest scene in movie history. In real life, she was a citizen of France who married Marcel Dalio when she was 16, and then fled the country with him after the German invasion. Their marriage was short-lived, and Ms. Lebeau returned to Europe after the  war, where she continued to act in France, Britain, and Spain. She died last year at age 92–the last surviving named cast member in Casablanca.

Seventy-five years after its release, Casablanca is recognized as one of the great films of all time. The emotion brought to the movie by so many real-life refugees from Nazism certainly contributes to the film’s power. Indeed, refugees helped shape the movie, and the movie helped shape our vision for the war (critic Pauline Kael once opined, “Our image of the Nazi was formed by the Jewish refugees”).

Finally, the undisputed greatest scene in movie history: A group of Nazi officers is singing a patriotic German song at Rick’s café. They are–they believe–the masters here. Resistance leader Victor Laszlo notices the men and marches over to the house band. He tells them to play le Marseille, the anthem of free France. The band looks to Rick, and he has another decision to make–keep out of it, or get involved. See what happens here.

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The Perils and Pitfalls of Applying for a Green Card

by Jason Dzubow on November 13, 2017

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

The new Green Card application process.

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

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

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

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

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

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

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

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

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

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

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

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

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

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Asylum for Witches

by Jason Dzubow on October 30, 2017

Just in time for Halloween, the Witchcraft & Human Rights Information Network (“WHRIN”) has released a report called “Witchcraft Accusations and Persecution; Muti Murders and Human Sacrifice.” The report was prepared for the United Nations Expert Workshop on Witchcraft and Human Rights, which was held last month, and it discusses the wide-spread and under-reported human rights problems related to witchcraft and other harmful traditional practices. From the WHRIN report–

Persecution.

In numerous countries around the world, harmful witchcraft related beliefs and practices have resulted in serious violations of human rights including, beatings, banishment, cutting of body parts, and amputation of limbs, torture and murder. Women, children, the elderly, and persons with disabilities, such as persons with albinism, are particularly vulnerable. Despite the seriousness of these human rights abuses, there is often no robust state led response.

The report indicates that the “exact numbers of victims of such abuses is unknown and is widely believed to be underreported.” “At the very least,” the report continues, “it is believed that there are thousands of cases of people accused of witchcraft each year globally, often with fatal consequences, and others are mutilated and killed for witchcraft-related rituals.” The number of cases—and the level of violence against victims–seems to be rising, and no area of the world is immune, though most of the documented cases are found in India (120 reported cases in 2016), Nigeria (67 cases), Zimbabwe (29), and South Africa (28).

This is all very sobering, and sad. In my work, I have represented a number of victims of traditional practices who have filed for asylum in the United States. One memorable case involved a young man from Rwanda who was gay. His family decided that he was possessed by demons, and so they had him kidnapped and held in a rural area where he was subject to a three-week exorcism ritual by some type of priest. The ritual involved beatings and starvation, among other things. We argued that all this amounted to past persecution on account of a particular social group—gay people. The government accepted our argument and approved the man’s application for asylum.

The success of our case was due, perhaps, to the fact that our client easily fit within a protected category for purposes of asylum (there are five protected categories—race, religion, nationality, political opinion, and particular social group, and under U.S. law, it is well-established that LGBT individuals can constitute a particular social group; unless a case fits within a protected category, asylum will be denied). Not all victims of witchcraft-related persecution fit so neatly into the asylum scheme, as the WHRIN report makes plain—

Those accused of witchcraft, or at risk of such accusations, are not a well-recognised vulnerable group [under the asylum law], and they do not accrue specially recognised rights as such. They do, however, benefit from human rights protections which are available to all people. Those who face persecution in this way may flee and seek protection in other countries, but their situation is precarious even in exile.

The WHRIN report primarily discusses British law, but asylum applicants in the U.S. could face a similar problem. I have not seen a case where “witches” or “people accused of witchcraft” has been found to be a particular social group (“PSG”) for purposes of asylum, but it seems that a strong argument could be made in favor of such a PSG. Persecution of “witches” might also be couched in terms of imputed religion—maybe the persecutors view the alleged witch in religious terms and would harm her for that reason. If there is an ethnic or racial component to the persecution, that might also allow the applicant’s case to fit into a protected category.

Besides witchcraft, the WHRIN report discusses other harmful traditional practices: Human sacrifice and murder for body parts, which are used in certain magic rituals (sometime called Muti murder). People with albinism are particularly vulnerable to such attacks (I wrote about that here), and they would likely constitute a PSG under U.S. asylum law. But other people targeted in this way might not easily fit into a PSG.

To win asylum, the applicant must show that she faces harm “on account of” a characteristic that the applicant herself possess (for example, her race) or on a characteristic that the persecutor “imputes” to the victim (for example, maybe the persecutor incorrectly believes the applicant is a government opponent and seeks to harm her for that reason). In the case of some traditional practice, the victim may not be able to show that the harm is “on account of” a characteristic or an imputed characteristic, and then asylum would be denied. In our exorcism case, for example, we had a relatively easy job, since our client was gay and was harmed due to his sexual orientation. But what if he was not gay and he was being “exorcised” for some other reason–maybe he was an unruly child and his parents wanted to “cure” him? Such a case would present a real challenge under U.S. asylum law.

Fortunately, there are some resources available. The WHRIN is the obvious starting point. The Forced Migration Current Awareness blog also has a list of resources, and UNHCR has a comprehensive report about witchcraft accusations against children. Given the severity of the harm and the likelihood that the problem is spreading, it seems to me that more work needs to be done in this area. The recent attention from the UN is a good start. Hopefully, we will see those efforts continued and expanded.

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