In 2012, President Obama’s Administration created the Deferred Action for Childhood Arrivals–or DACA–program, which deferred removal and granted work permits to certain aliens who came to the United States prior to their 16th birthdays, who have no serious criminal issues, and who meet certain educational or military-service requirements. As usual, the statistics from the government are hard to understand, but it seems that about 730,000 individuals have benefited from the DACA program.

Deporting her is a sure way to make America great again. As long as we don't get sick...

Deporting her is a sure way to make America great again. As long as we don’t get sick…

But now that Mr. Obama is “out” and Donald Trump is “in”, many DACA recipients fear that they will lose their tenuous status, and possibly face deportation. This concern is understandable. Mr. Trump has promised to “immediately terminate” the program, and since DACA beneficiaries have submitted their biographic information to USCIS, the government can more easily track them down and try to deport them. Also threatened with deportation are “Dreamers” – aliens who would benefit from the DREAM Act, which would have provided relief to a broader range of non-citizens than DACA, had it become law.

So are there any defenses to deportation for DACA beneficiaries and Dreamers? What can these people do now to start protecting themselves?

Assuming the new President ends the DACA program (which can be done by executive action, without Congressional involvement), DACA recipients would have a number of defenses to deportation (though this could change if the President and Congress modify the immigration laws). My primary focus here is asylum, but before we get to that, there are other possible defenses that DACA beneficiaries might consider: Claims to U.S. citizenship, improperly issued/served Notices to Appear, Cancellation of Removal, Adjustment of Status based on a family relationship or a job, residency applications based on being a victim of a crime or human trafficking. In short, there are many possibilities, and if you currently have DACA, it is worth thinking about whether any of them apply to you. This might entail researching the issues yourself or–if you can afford it–talking with a lawyer (if you cannot afford a lawyer, there might be free services available to you).

For many DACA recipients and Dreamers, I imagine that asylum will be the only viable option. 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. This means that in order to win your case, you will 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 to further develop your case. 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 DACA recipients and Dreamers.

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 one of the protected grounds. 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 U.S. or that he meets an exception to this rule. I expect that this will be a particular issue for DACA recipients and Dreamers, since they have been here for years. If you have not filed within a year of entry and you do not meet an exception, 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.

There are some exceptions to the one-year rule that may apply to DACA recipients and Dreamers. If a person is lawfully present in the U.S., that is considered an exception to the rule (technically, it is considered “exceptional circumstances” that excuses the missed deadline). For example, if a person is on a student visa for four years, and then she applies for asylum while still in lawful status, she meets an exception and is eligible for asylum. People with DACA could argue that DACA status constitutes an exception to the one-year rule. Whether or not this will work, I am not sure, but it is worth exploring. Another common exception is “legal disability,” which includes being a minor. So if you file for asylum before you turn 18 years old, you will meet an exception to the one-year rule.

Another 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 an exception to the one-year rule.

For DACA recipients and Dreamers, asylum may be the 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, because it is written into the law (based on a treaty signed by the United States in 1968), Mr. Trump cannot eliminate asylum without the cooperation of Congress, and such a radical step seems unlikely. So asylum should remain an option for DACA beneficiaries and Dreamers. Second, 150 days after you file for asylum, you can file for a work permit. The Trump Administration could change this provision without Congressional action, but as the law now stands, asylum applicants can get work permits. 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. The process can take years, and if Mr. Trump follows through on his promises to deport even more people, the system may further slow down.

Whether the new Administration will move to end DACA and deport Dreamers, we do not yet know. If the goal is really to deport as many “illegals” as possible, I believe that starting with DACA recipients is a strategic mistake: Such people are well-integrated into our society and starting with them will create fierce resistance. It would be easier to step up border enforcement, block refugees from entering, and broaden detention for criminal aliens. But my suspicion is that Mr. Trump is more concerned with the appearance of progress than with actual progress. If so, DACA recipients are an easy target–the government can harm them merely by taking away their status and work permits–and this will demonstrate visible progress to those who oppose immigrants. On the other hand, there are some positive signs coming from Congress. Either way, DACA beneficiaries cannot rely on hope, they should start planning now, so they are ready for whatever the new Administration has in store.

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Within hours of Donald Trump’s election, tens of thousands (literally) of lawyer across the country began organizing to oppose his anticipated policies, whatever those may be. Groups are forming on Facebook and meetings are being scheduled. It’s all very preliminary, but it’s quite clear that if Mr. Trump’s policies equal his harsh campaign rhetoric, attorneys across the U.S. will be prepared to contest those policies in court.

Lawyers are ready to fight for our clients.

Lawyers are ready to fight for our clients.

Of course, one key area of concern is immigration. Mr. Trump has vowed to build a wall, return Syrian refugees, deport criminal aliens, subject Muslim immigrants and visitors to “extreme vetting,” and end “catch and release” at the border.

At this point, it is quite unclear to me what he (1) will do, and (2) can do. Some actions against non-citizens are easier than others. For example, Mr. Trump can enact certain changes without Congressional involvement (diverting resources away from the asylum system, charging a (limited) fee for asylum, eliminating work permits for asylum applicants, and–to a large extent–restricting the definition of particular social group). Other changes require Congressional action (modifying the burden of proof on asylum seekers, blocking asylum seekers who came to the U.S. by passing through a third country, and reducing the one-year time period aliens have to file for asylum after they’ve entered the country). Finally, some changes would require a Constitutional amendment (eliminating due process for non-citizens). So where do lawyers come in? What can we do?

The way I see it, there are three broad areas where lawyers can help: Litigation, lobbying, and public relations. Let’s take a look at each:

Litigation: This is what (many) lawyers do. We represent our clients in court. As it stands now, most non-citizens in Immigration Court do not have an attorney. If deportation cases are stepped up, it’s unclear whether the Immigration Courts can handle the volume (currently, there are about 11,000,000 illegal aliens in the U.S. In FY 2015, the country’s Immigration Judge’s completed almost 200,000 cases. At that rate, it would take over 55 years to resolve the cases of everyone here unlawfully).

It’s well-established that aliens who have an attorney are more likely to win their cases. Indeed, unrepresented asylum seekers win their cases only about 9% of the time. Represented asylum seekers win nearly 50% of their cases. So hopefully, some of our organizational energy will go towards increasing the percentage of represented aliens by providing more pro bono and low bono services–currently, only about 2% of people in Immigration Court have pro bono representation. Perhaps we can also volunteer to present more know-your-rights presentations, so that aliens without lawyers can at least get some help with their cases.

Another benefit of more aliens actively fighting their cases is that it will require more government resources–and time–to deport them. This will slow the system down and prevent the government from deporting more people (normally, I would not consider “slowing the system down” as a “benefit,” but in these times, perhaps it is).

On a higher level is impact litigation–lawsuits to challenge policies that affect many immigrants. I imagine the national organizations, such as AILA, AIC, and the ACLU, among others, will take the lead here. They have the resources and the expertise. By supporting such organizations with our time and our donations, we aid their efforts to block egregious changes to our immigration system.

Lobbying: Lawyers can be effective lobbyists. We know the law, and we know how the law affects non-citizens and their families at the ground level. This type of hands-on experience allows us to talk to law-makers, at the national level, and also at the state and local levels.

Opponents of immigration and refugee admissions are known for their active and passionate lobbying, and we lawyers need to participate with pro-immigration groups to present the other side of the story. I am convinced that when lawmakers hear from real people–people like our clients and their family members–they can be moved. Indeed, before he was a candidate, Donald Trump met with Dream Act activists and told them, “You convinced me.” If such stories can impact Mr. Trump (at least temporarily), they may be able to affect our country’s legislators.

Public Relations: I’ve written about this before, but over the past 20+ years, there has been a growing disconnect between the development of the immigration law, on the one hand, and the “will of the People,” on the other. Through litigation and presidential action, laws have been expanded to benefit more and more aliens–victims of FGM and domestic violence, Dream Act immigrants, unaccompanied minors–without input from “the People” (i.e., Congress).

As one who represents non-citizens, I certainly will not apologize for helping my clients. That is my duty as an attorney. However, I feel that we as immigration advocates need to work harder to build support for more pro-immigrant policies. This involves making our case directly to the American people. If our countrymen had a better idea about who our clients are, why they come here, and how they benefit our nation, I believe that many of them would favor a more open policy towards immigrants.

As I said in the beginning, all this is a quite preliminary. Although Mr. Trump’s rhetoric–and some of his cabinet choices–seem ominous, we really do not know his plans. Nevertheless, it makes sense to start organizing now, so we are prepared for any eventuality.

In his play Henry the Sixth, Shakespeare’s character Dick the Butcher famously intones, “The first thing we do, let’s kill all the lawyers.” The context of that quote is often forgotten. Dick is a follower of Jack Cade, a pretender to the throne of England and a populist. For Jack to take control, law and order must be subverted, and this requires getting the lawyers out of the way. In our own time too, we attorneys stand between a populist and his possible victims, but judging by the early organizing efforts, I have little doubt that we will stand firm.

 

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Kate Sugarman is a medical doctor at Unity Health Care in Washington, DC, a public community health clinic. She works with people who have survived abuse and trauma, including many refugees. As a family physician, she is qualified to make medical diagnoses and prescribe treatments. She has particular experience in diagnosing and treating post-traumatic stress disorder through her family medicine training program and her clinical practice, which focuses on minority and immigrant patients, many of whom suffer from physical and mental disorders. She is also an adjunct faculty member at the Georgetown University Law School Center for Applied Legal Studies (the Law Clinic) in support of their asylum work. Here, she discusses her work, and the new reality of a Trump Administration:

The morning after the election felt like day zero of the apocalypse.

Dr. Sugarman running from one appointment to the next.

Dr. Sugarman running from one appointment to the next.

Like most of us, I learned that night that Trump had won. But I knew I could not stay up too late to mourn. I had to meet a patient at 7:30 AM for a forensic evaluation.

Just to explain: When I say a forensic evaluation, what I mean is a medical examination that is part of an asylum seeker’s evidence in his or her quest for asylum. I do not perform psychological forensic evaluations, which would mean psychological evidence of the effects of being tortured, such as anxiety, depression or PTSD. Those exams are most often conducted by mental health professionals. I conduct medical forensic evaluations. Most of the effects of torture that I document are visible scarring on the skin from beatings, stabbings, burning, etc. I also document any other visible medical signs of the effects of being tortured, like swelling, hearing loss, damage to bones and joints, etc. I never charge the asylum seekers for these examinations.

I conduct the examination in the following way. First, I read the patient’s personal statement–which explains why that person fears persecution in the home country–so I have a basic idea of what happened. Then I gently interview the patient, always trying my best not to retraumatize the person. The focus of my interview is the physical violence that has left visible scarring and other signs of torture on the person’s body. Then I examine the patient, looking for scarring and other signs of abuse. Since I have performed these examinations for so many years on so many people, I have a sense of whether scarring is consistent with the stated explanation of how it happened.

The 7:30 AM  patient had approached me the previous week. He told me that his asylum case had been denied, but he found a lawyer who had agreed to try to reopen the case. He asked me whether I could document his scars. I told him yes, as long as he could bring me his personal statement. The interview and examination were straight forward. As often happens, he only reported one scar to me. I had him get partially undressed at which point, I discovered more scars that he had forgotten to describe to his lawyer or me. Because asylum applicants often fail to remember all their old injuries, I always try to do a “head to toe” examination whenever possible.

After we finished, I rushed off to clinic where I had another asylum seeker waiting for me. This person had no visible scarring, but had been seeing me for some time in clinic to be treated for depression and insomnia due to the torture. His lawyer wanted a summary of my clinic notes describing the emotional distress that this person had been experiencing.

Both patients were extremely grateful for my services.

According to a study from Physicians for Human Rights, forensic reports from physicians can make a big difference in the outcome of an asylum seeker’s application. I choose to do this work because I find it enormously rewarding. I have heard so many times from attorneys that judges and Asylum Officers comment on my reports, saying that the evidence I documented was very helpful in evaluating the applicant’s claim.

I have discovered over the years, in addition, that just the fact of the client presenting their story to me, and my active and compassionate listening, seems to have a therapeutic value to the client. Clients sometimes seem a little less burdened after I have finished listening to them and documenting their scars. Of course, there is no greater gift than when someone comes running into clinic to hug me, and tell me that they were just granted asylum. Twice in the past few weeks, people came up to me, thanking me for my detailed and kind forensic evaluations, which they said were very helpful in their receiving asylum. I had examined each of these people more than five years ago, but they apparently never forgot me.

But now–with the election of Donald Trump–asylum seekers may be feeling more fearful. So what would I tell a Trump supporter? That is a difficult question, but I suppose if Mr. Trump wants to make America great again, we should help wonderful and deserving people be granted asylum. If my grandparents had not been allowed into the United States, then they would have been killed by Hitler, and I would not be here in the U.S. doing this important work.

I cannot undo Trump’s victory, but I am determined to do everything in my power to help as many asylum seekers as possible.

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The People have spoken. Donald Trump will be the next President of the United States. He will enter office with a Republican House and Senate, though not a filibuster-proof majority, but certainly enough to enact much of his legislative/policy agenda. So what can asylum seekers, asylees, and refugees expect?

Sometimes white is a very dark color.

Sometimes white is a very dark color.

Of course, with Mr. Trump, it’s often hard to know his plan. Will he keep his campaign promises to ban Muslims? Return Syrian refugees? Build a wall? Narrow the category of people eligible for asylum (as implied by the Republican Party platform)? Can these policies even be implemented in practice? It’s far too soon to know which direction Mr. Trump will go with all this, but here are some initial thoughts, not so much about what he will do, but about what he has the power to do.

Banning Muslim Immigrants: The U.S. government has the power to block most anyone from coming to the United States. In previous eras, we have excluded Chinese, Southern Europeans, Jews, and all sorts of other “undesirables.” More recently, after 9-11, we enacted Special Registration for people from certain majority-Muslim nations, though this was not a ban on Muslims, just a restriction on those already here.

Also, if you have ever applied for a U.S. visa, you know that the consulates exercise almost unlimited discretion to deny visas to people deemed ineligible. For people overseas seeking a visa, it would be easy for President Trump to deny visas to applicants from majority-Muslim countries, or to those who are Muslim. This could be done even without Congressional action.

The policy implications for such a move would be unpredictable. How would the “banned” countries react? What would this mean for our diplomatic relations with those countries and our ability to cooperate with them against the war on Islamic extremists? There are also economic implications for trade, business investment, and universities that enroll (and make money from) foreign students. I imagine the competing constituencies would weigh in on the efficacy of a Muslim ban, and so it is difficult to know how this would work in practice. But President Trump will basically have the power to block Muslims who are overseas from coming to the United States.

Refugees: This past year, we accepted about 85,000 refugees. Traditionally, the plurality of refugees we accept are Christian, but in FY 2016–for the first time since FY 2006–the plurality (44%) of refugees resettled in the United States were Muslim (the Pew Research Center provides some good data on this subject). This shift reflected President Obama’s response (tepid, in my opinion) to the Syrian refugee crisis. In determining how many refugees to bring to the U.S., the President consults with Congress and comes up with a number. So Mr. Trump could reduce or eliminate the number of refugees coming to the U.S., or he could shift the focus away from Muslim refugees.

Again, there are policy implications for such a move. The world is facing the worst refugee crisis since World War II. What does it mean for the character of our nation to ignore the suffering of these individuals? How will our retrenchment affect the efforts of other countries to assist refugees? How will it affect our ability to wield moral authority and to continue our role as the leader of the Free World? Or have we as a nation decided to abdicate that role?

Asylees and Muslim Refugees Who Are Already in the United States: And what about those Syrian refugees (and other refugees and asylees) who are already here and have already been granted refugee status or asylum in the United States? Deporting people who are here, with lawful status, is much more difficult than excluding people from coming here in the first place. Such people have a Constitutional right to due process of law, meaning that they cannot be deported from the U.S. without a legal procedure. Currently, that procedure involves presenting one’s case to an Immigration Judge, who then determines whether the person is eligible to remain in the United States. People who have already qualified for protection under U.S. law (which is based on our ratification of various international treaties) cannot simply be removed from the country. The procedure to remove them is long, and–given that they have already qualified for protection–under current law, they cannot be deported.

For these reasons, although Mr. Trump has vowed to send Syrian refugees back, I suspect that this will not be easily accomplished. First, it would mean a change in the law, and this requires the cooperation of Congress. As mentioned, while the Republicans have a majority of seats in Congress, there is still a powerful Democratic minority that could potentially block such a change. Also, it is likely that a significant minority of Republicans would oppose changing our humanitarian laws.

And even if the law related to asylum were changed, there are several other laws that people currently in the U.S. might use to avoid removal. For example, those who fear harm as defined by the UN Convention Against Torture might assert a defense based on that treaty. Those who have been here for longer periods of time might be eligible for other forms of relief, like Cancellation of Removal or adjustment of status based on a family relationship. In short, people who are living in the U.S. and who have refugee or asylum status have several layers of protection that will likely insulate them from any effort to have them removed. And any effort to make the sweeping changes needed to force such people to leave will require unified Congressional action, something that we are unlikely to see.

Of course, if such changes could somehow be made, there are policy implications here as well. What will it mean to send back Syrian refugees (mostly women and children) to that war torn region? How will it affect our moral standing in the world? What would it mean for international law in general if we abrogate our treaty obligations? And what would be the “ripple effect” of such a policy?

People with Asylum Cases Pending: People who are in the United States with asylum cases pending also have the benefit of due process protections. They cannot be deported unless and until an Immigration Judge determines that they do not qualify to remain in the United States. Under current law, even people from majority-Muslim countries benefit from these protections–which are “rights”–under domestic and international law. To change this regime, Congressional action would be necessary. Again, it is unclear whether President Trump will have the supported needed to enact such sweeping changes in this area of law.

The bigger immediate concern for people with pending asylum cases is how the Trump Administration will allocate resources towards the asylum system. I suspect that resources will be increased for Immigration Courts (which can deport people, but which can also grant relief and allow people to stay here). I am not so optimistic about the Affirmative Asylum System–these are the Asylum Offices that review asylum cases filed by people who are in the U.S. and who fear persecution in their home country. The Affirmative Asylum System is already beleaguered by long delays, and if the new Administration diverts resources from that system, it will only slow the process further. One option for a Trump Administration might be to eliminate the Asylum Offices and send everyone to Immigration Court. How this would play out in terms of delay or efficacy, I do not know.

The Wall and Restrictions on the Definition of Particular Social Group: Finally, Donald Trump has promised to build a wall to prevent people from entering the U.S. through Mexico. This seems to me more a fanciful campaign promise than a realistic or effective means of tightening the border. So I doubt he will build an actual wall. He could however, make it more difficult for people arriving at the Southern border to seek asylum by restricting the definition of those eligible for asylum. Specifically, many people who come to the border seek asylum because they fear persecution by gangs or domestic violence (in legal terms, they are seeking asylum because they fear persecution on account of their “particular social group”). Our current system allows such people to arrive at the border, “pass” a credible fear interview, enter the U.S., and then have their cases adjudicated by an Immigration Judge. If a Trump Administration restricted the definition of particular social group, and raised the bar for credible fear interviews, it could largely shut down the border without resorting to a wall, and probably without violating our treaty obligations.

Again, of course, there are policy concerns here. If relations with Mexico sour, that country could do less to interdict migrants traveling north through it’s territory. That could result in a larger refugee crisis at our border. Also, if our country closes the doors to refugees in our backyard, other countries may follow suit, and the result would be a more severe worldwide refugee crisis, and the likely deaths of many innocent people trying to escape harm.

For now, all this is conjecture. Donald Trump will not assume office for another few months. During that time, he will (presumably) begin to articulate how he will translate his promises into actual policy. Given the campaign we just witnessed, it is difficult not to be pessimistic. However, to paraphrase John Donne, No policy is an island, entire of itself. To implement changes to the humanitarian laws will implicate many other important policy areas. Perhaps–we can hope–this will help mitigate the more radical plans raised prior to the election. Here’s John Donne, once more, “Any man’s death diminishes me / Because I am involved in mankind / And therefore never send to know for whom the bell tolls / It tolls for thee.” Let’s hope Mr. Trump recognizes the gravity of his proposed changes, and the effect they could have on innocent lives. Let’s hope.

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This piece is by Samantha Hsieh, a fellow at our law firm. Samantha recently graduated from The George Washington University Law School with honors. She is interested in practicing asylum law and removal defense. Samantha’s immigration experience includes interning at a law firm and at the Department of Justice, Office of Immigration Litigation. Prior to law school, she worked as a paralegal at an immigration firm.

I recently attended the Doctors Without Borders, or Médecins Sans Frontières (“MSF”), Forced From Home exhibit on the National Mall in Washington, DC. The exhibit, which is touring five East Coast cities this year, allows participants to learn about the experiences of refugees from around the world and raises awareness for their cause.

Participants could choose between clothes, jewelry, children’s toys, a bicycle, a wheelchair, a guitar, footwear, money, fishing equipment, pets, medication, a phone, keys, water, a sewing machine, photos, scarves, a passport, food, and baby formula

Participants could choose between clothes, jewelry, children’s toys, a bicycle, a wheelchair, a guitar, footwear, money, fishing equipment, pets, medication, a phone, keys, water, a sewing machine, photos, scarves, a passport, food, and baby formula

Upon entry, visitors are given an identity as a refugee, internally displaced person, or asylum seeker from Honduras, South Sudan, Burundi, Syria, or Afghanistan. According to MSF, there are currently 65 million people in the world fleeing from conflict or persecution. Our tour guide, Jane, explained the work of MSF, which employs around 35,000 people and provides free medical care in over 60 countries. Jane is a nurse who has worked in dozens of refugee camps.

One of our first tasks was to select five items from 20 to bring on our journey. I chose a cell phone, medication, passport, water, and stove. Refugees fleeing on foot are limited to items that they can easily carry. Oftentimes, decisions about which items to bring must be made in a hurry. I noticed that the only other participants who had also chosen cell phones were two children whose eyes were glued to their iPads the entire time. We were forced to give up our items one by one in order to pay for different parts of the journey.

Jane led our group onto a small inflatable raft in order to simulate crossing the Mediterranean Sea. We sat in the raft with the men on the perimeter and the women and children in the center on the floor.

These rafts were supposed to hold seven people, but as many as 60 refugees and their belongings would squeeze into one raft. Smugglers load refugees onto the rafts and then leave them to their journey, often without enough fuel. Refugees are sometimes given cheap counterfeit life vests, filled with ineffective packaging material. Rafts that stay on course take about eight days to reach Europe. The cost of admission for a seat in one of these rafts? US$2,000.00 to US$3,000.00 per person. Since January 2016, roughly 3,600 refugees and migrants have died or gone missing attempting to cross the Mediterranean into Europe.

Refugee camp bathrooms lack privacy.

Refugee camp bathrooms lack privacy.

Next, we visited a re-creation of a refugee camp. Each person in the camp receives a daily ration of water, grains, beans, oil, and salt. The young women and girls are responsible for filling and delivering water containers holding up to six gallons. Humans need a minimum of four gallons of water a day for drinking and basic hygiene and cooking. For comparison, the average American uses 90 gallons of water each day. Jane also demonstrated how to use a typical bathroom in a refugee camp, which is essentially a box around a hole with a curtain in the front. Notably missing was toilet paper.

Standing in front of an MSF medical tent, Jane told us about several medical issues that refugees face. While relatively easy to treat, cholera–which arises from contaminated food or water–can kill within hours if left untreated. Malaria is also common. MSF staff test patients for malaria by applying a blood sample to a test card. Because of language barriers, the packaging for the malaria medication uses symbols instead of words to convey dosage instructions.

A typical MSF medical tent

A typical MSF medical tent

Malnutrition in young children can be difficult to recognize, particularly for local aid workers who lack formal medical training. MSF staff use mid upper-arm circumference (“MUAC”) bracelets to measure the arms of young children as a simple means of detecting malnutrition and determining a treatment plan. Children whose arm circumference is under 116 millimeters (roughly 4.5 inches) suffer from severe acute malnutrition and are immediately hospitalized. Malnourished children are fed Plumpy’nut, a high-calorie peanut paste mixed with vitamins, minerals, and other ingredients for weight gain. One small packet of Plumpy’nut contains 500 calories.

Finally, we viewed several tents similar to those where refugee families live. Conditions in refugee camps range from reprehensible (more common) to fairly good (rare). Regardless of their living conditions, refugees are forced to wrestle with concerns over the safety of family and friends left behind and uncertainty over their own futures.

Plumpy’nut has been called “surprisingly tasty.”

Plumpy’nut has been called “surprisingly tasty.”

The town of Dadaab, Kenya contains some of the oldest and largest refugee camps in the world. The first camps in Dadaab were constructed in 1992. The Dadaab camps are now home to over 300,000 refugees. Some refugees born in Dadaab have grown up and now have children of their own. Jane told us of one resident she spoke to who had expected to stay for only a few weeks. He has not left the camp in over 15 years.

At the end of the exhibit, Jane told us the greatest lessons she learned from serving as a nurse in refugee camps around the world. “Every day,” she said, “I was reminded of the resilience of humanity and that despite the terrible things that had happened to them there, people always miss their home.”

Follow the route of the Forced From Home exhibit, register to attend, and sign up for updates about future locations here.

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The Asylum Backlog, Revisited (Ugh)

by Jason Dzubow on October 25, 2016

in Asylum, Asylum Office, Asylum Seekers

I haven’t written about the asylum backlog in awhile. Mostly, that’s because the subject is too depressing. Cases are taking years. Many of my clients are separated from their spouses and children. A number of my clients have given up, and left the U.S. for Canada or parts unknown. The backlog has also made the job of being an asylum attorney more difficult and less rewarding–both financially and emotionally. That said, I suppose an update on the backlog is overdue. But I warn you, the news is not good.

“Let’s talk about the asylum backlog… again.”

“Let’s talk about the asylum backlog… again.”

The most recent report from the USCIS Ombudsman—which I have been trying not to look at since it came out in June—indicates that the affirmative asylum backlog (the backlog with the Asylum Offices, as opposed to the Immigration Court backlog) has increased from 9,274 cases on September 30, 2011 to 128,303 cases as of December 31, 2015. This, despite significant efforts by the Asylum Division, and the U.S. government, to address the issue.

The Ombudsman’s report lists five main reasons for the dramatic increase in backlogged cases: (1) high volume of credible and reasonable fear interviews; (2) a rise in affirmative asylum filings; (3) increased numbers of filings with USCIS by unaccompanied minors in removal proceedings; (4) the diversion of Asylum Office resources to the Refugee Affairs Division; and (5) high turnover among asylum officers. Let’s take a closer look at what’s going on.

First, the number of credible and reasonable fear interviews at the border have increased significantly over the last several years (when an asylum seeker arrives at the border, she is subject to a credible or reasonable fear interview, which is an initial evaluation of asylum eligibility). The numbers for FY 2015 were slightly down from a high of about 50,000 interviews in FY 2014, but FY 2016 looks to be the busiest year yet in terms of credible and reasonable fear interviews. The reasons that people have been coming here in increased numbers has been much discussed (including by me), and I won’t re-hash that here. I do suspect that the upcoming election—and talk of building a wall—is causing more people to come here before the door closes. Maybe after the election, regardless of who wins, the situation will calm down a bit.

Second, the number of affirmative asylum applications has also increased. There were 83,197 applications in FY 2015—up 130% from FY 2011. There are probably many reasons for the increase, but I imagine the chaotic situation in the Middle East, violence in Central America and Mexico, and political persecution in China are important “push factors.” The relatively strong U.S. economy and the presence of ethnic communities already in the United States are a few factors “pulling” migrants to our country.

Third, an increased number of minors in removal proceedings have been filing their cases with the Asylum Division. Unaccompanied minors who have a case in Immigration Court are entitled to a non-confrontational asylum interview at the Asylum Office. The number of these children requesting an interview has increased from 718 in FY 2013 to 14,218 cases in FY 2015, and these cases have added to the Asylum Division’s case load.

Fourth, President Obama has increased the “refugee ceiling” from 70,000 to 85,000. In order to process these cases and bring the refugees from overseas, the Refugee Affairs Division has been borrowing asylum officers—about 200 such officers will be sent to the RAD for two months stints. And of course, if they are working on refugee cases, they cannot be working on asylum cases.

Finally, the Asylum Division’s efforts to reduce the backlog have been hampered by a high turnover rate among Asylum Officers. According to the Ombudsman’s report, the attrition rate for Asylum Officers was 43% (!) in FY 2015. Some of the “attrition” was actually the result of officers being promoted internally, but 43% seems shockingly high.

As a result of these factors, wait times have continued to grow in most offices. The slowest office remains Los Angeles, where the average wait time for an interview is 53 months. The long delays in LA are largely because that office has a high proportion of credible and reasonable fear interviews (“CFIs” and “RFIs”). New York, which is the only office where wait times have decreased, has an average wait time of just 19 months. The NY office does not have a detention facility within its jurisdiction, and so there are fewer CFIs and RFIs. As a result, the NY office is better able to focus on “regular” asylum cases and can move those cases along more quickly.

The Ombudsman report also discusses post-interview wait times, which stem from “pending security checks, Asylum division Headquarters review, or other circumstances.” The wait time between a recommended approval and a final approval has increased from 83 days in FY 2014 to 105 days for FY 2016. Also, the delay caused by Headquarters review has increased to 239 days in FY 2016 (I wrote about some reasons why a case might be subject to headquarters review here). In my office, we have been seeing delays much longer than these, primarily for our clients from Muslim countries.

The report discusses delays related to Employment Authorization Documents (“EADs”). Regulations provide for a 30-day processing time for EADs, but USCIS “regularly fails to meet” that deadline. Indeed, the processing time for EADs at the Vermont Service Center is “at least 110 days,” which—based on my calculations—is somewhat longer than the 30-day goal. One improvement in this realm is that EADs for asylum applicants will now be valid for two years instead of one (this change went into effect earlier this month). If EADs are valid for a longer time period, USCIS will have fewer EADs to renew, and hopefully this will improve the overall processing time.

The Asylum Division has responded to this mess by (1) hiring new officers; (2) establishing new sub-offices; (3) publishing the Affirmative Asylum Scheduling Bulletin (I discuss why the Bulletin is not a good predictor of wait times here); and (4) developing new EAD procedures.

The number of new Asylum Officers has increased from 203 in 2013 to over 400, as of February 2016, and USCIS was authorized to employ a total of 533 officers in FY 2016. USCIS has also been trying to mitigate the high level of turnover. They created the “Senior Asylum Officer” position, which, aside from offering a fancy title, may allow for a higher salary, and they have scaled up their training programs in order to get more officers “on line.”

In addition, USCIS has opened new sub-offices, including one in Crystal City, Virginia, which will (hopefully) employ 60 officers to conduct exclusively CFIs and RFIs by phone or video link. Supposedly, the Crystal City office will assist Los Angeles with its CFIs and RFIs in an effort to reduce the close-to-eternal backlog in that office.

Finally, USCIS is trying to improve the EAD process. One change is that applicants who move their case from one Asylum Office to another will no longer be penalized for causing delay. Previously, if an applicant caused delay, her Asylum Clock would be stopped and she could not get her EAD. USCIS has also proposed a rule change so that an applicant’s EAD will automatically be extended when she files for a new card. I wrote about this proposed (and much-needed) change almost one year ago, and it has yet to be implemented. Lastly, as mentioned, EADs are now valid for two years instead of one.

So there you have it. There is no doubt that USCIS and the Asylum Division are making efforts to improve the situation. But unless and until the crisis at the border subsides, it seems unlikely that we will see any major improvements in the way cases are progressing through the system. So for now, we will wait, and hope.

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President Obama said in a radio interview, “If you vote for a third-party candidate who’s got no chance to win, that’s a vote for Trump.” But for those planning to vote third party, it’s not simply the prospect of a President Trump that worries me. It’s also the idea that voting Libertarian or Green actually sets back the hope of growing those movements. Worst of all, voting third party represents an inability to compromise—and the ability to compromise is perhaps the most important characteristic necessary for democracy to survive.

I prefer Clinton's baggage to Trump's barrage.

I prefer Clinton’s baggage to Trump’s barrage.

Let’s set aside the third party candidates—Jill Stein of the Green Party and the Libertarian Party’s Gary Johnson—and whether they have the abilities needed to serve as President. For purposes of this discussion, it doesn’t much matter—they both have their strengths and weaknesses, as does Hillary Clinton. But unlike voting for Ms. Clinton, voting for a third-party candidate constitutes a triple threat to democracy. Why do I say this?

First, because Donald Trump is, himself, a threat to our country’s democracy. I won’t rehash all the ways Mr. Trump is unfit to lead our nation. I doubt anyone who reads this blog supports his bid for the White House. But I will note that for people like my clients–immigrants and refugees from majority-Muslim nations–this election is about life or death. Mr. Trump has threatened that if he wins the presidency, he would return Syrian refugees to their war-torn region: “If I won, they’re going back,” he’s said. Scapegoating refugees and immigrants is nothing new, but as a Jew whose European relatives were destroyed by Hitler, I know very well where this type of talk ultimately leads.

Further, Mr. Trump’s repeated comments about putting Hillary Clinton in jail reveal quite clearly his fundamental inability to lead a democratic society. It’s not just Ms. Clinton, by the way. Anyone who disagrees with Mr. Trump on policy, or who stands in the way of his bid for power is “stupid” or a “liar” or “corrupt” or a “fat pig” or should be thrown in jail (or worse). Maybe an uncompromising bully can succeed in the world of business, but that’s not how politics—particularly democratic politics—works. As President, you have to be able to talk to people who disagree with you: Leaders of other nations, members of Congress, governors, civic and business leaders. Even with regard to rivals, you have to find common ground in order to make progress and keep our country safe. Also, in a democracy, you have to make arguments to convince your opponents that you are correct. You have to persuade them. It’s hard to get cooperation or build coalitions when you threaten or denigrate anyone who disagrees with you. Indeed, this approach to governing is antithetical to democracy.

Second, I believe that voting for either third party candidate will set back progress towards a more viable multi-party (as opposed to two-party) system. I felt the same way about Bernie Sanders, even though his policies more closely align with my own beliefs. For a third party candidate to succeed in office, he or she needs a viable foundation upon which to govern. I am a member of the Green Party, and I will vote Green for the down-ballot candidates. For a Green Party (or Libertarian) candidate to successfully lead our nation, we need third-party governors, mayors, members of Congress, etc. This is how a movement is built: From the bottom up. It takes time, patience, and commitment. More, it takes many people willing to devote themselves to lower-profile races. If we had dozens of elected officials from the Green Party serving in local offices, we would be more ready for a Green President (ditto for the Libertarians). Without that, a third-party President would have no base to build upon, and I believe such a President could accomplish little. In this way, the third-parties’ focus on the presidency distracts from the real work of building a viable alternative to the Democrats and Republicans. And this, I believe, is bad for our democracy.

Finally, voting for a third party candidate threatens our democracy because it represents an inability to compromise. Compromise being essential to any democratic society.

Jill Stein has argued that voters should not have to choose a “lesser evil,” that she—and presumably Gary Johnson—represent a third way. This is false. Polling and social science data demonstrate that neither third-party candidate can win this election. Indeed, Gary Johnson—who is more popular than Jill Stein—has less than a 2% chance of winning even one electoral vote! Maybe you don’t believe the polls. Maybe you also think that global warming is a fraud, that cigarettes don’t cause cancer, and that vaccines cause autism. If so, you are probably voting for Donald Trump already. But if you live in the real, evidence-based world, here is some (non) news: Global warming is real, cigarettes do cause cancer, vaccines do not cause autism, and neither third-party candidate has any chance to win this election.

Perhaps you see your third-party vote as a boycott of “The System.” But that argument fails as well. If you don’t like the corporate policies of, say, Starbucks, you can stop buying their coffee and hope that the economic impact of losing your business will cause them to change their ways. But that’s not how it works with elections. “Boycotting” the election because you oppose the “lesser evil” only serves to empower the greater evil. It’s as if boycotting Starbucks would encourage them to continue the very policies you oppose. In other words, boycotting the election will have the exact opposite effect of what was hoped for.

We live in a democratic republic. If we had a different system—like a parliamentary democracy—voting third party might make sense. Once the elected officials are in office, they themselves would have to make the compromises necessary to forge a ruling coalition. But in our system, we, the people, elect a President. We have to make those compromises ourselves. And of course, making compromises is not easy—not getting your way never is. But that is our system, and for now at least, this is our choice: Vote for Hillary Clinton or for Donald Trump. The others are just a dangerous distraction from reality.

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And now, part 2 of my interview with Paul Wickham Schmidt (if you missed part 1, it is here):

ASYLUMIST: Your Chairmanship ended in April 2001, a few months into the George W. Bush Administration. What happened?

PWS: John Ashcroft was President Bush’s first Attorney General. He was advised by Kris Kobach, who was then at DOJ. Kobach is now Secretary of State in Kansas and is well known for his outspoken restrictionist positions. Ashcroft and his people did not like some of the Board opinions, and they particularly did not like Board Member Lory Rosenberg and several others of us. They apparently thought the Board was too liberal, even though the so-called “liberal wing” was consistently outvoted on almost all meaningful precedents where there was a “split Board.”

Paul Wickham Schmidt relaxes after being grilled by The Asylumist.

Paul Wickham Schmidt relaxes after being grilled by The Asylumist.

I’d add that the dissenters have eventually been proved right by subsequent decisions from the Federal Courts and even from the BIA itself on issues like protection for domestic violence victims, more critical examination of IJ credibility decisions, application of the categorical approach and modified categorical approach to crimes, and a less restrictive approach to CAT protection. Board Member Rosenberg was known for being quite outspoken in separate opinions criticizing some of the BIA’s jurisprudence. But, she often was proved right over time. Indeed, the Supreme Court favorably cited one of her dissenting opinions, something that, to the best of my knowledge, no other Board Member has ever achieved. So, in many ways we were punished for being ahead of our time.

About a week after Ashcroft got there, EOIR Director Kevin Rooney told me that the DOJ leadership wanted me out as the Chair. It wasn’t Kevin’s decision. He made it clear that he was just the messenger. Because I was a career member of the Senior Executive Service, this decision probably violated Civil Service rules which would have required the new Administration to keep me in place for a period of time – perhaps 120 days – before booting me to another position. But I realized that if Ashcroft didn’t want me, I could not survive in the job, and dislodging me might hurt the BIA by provoking an attack on the entire institution to justify removing me. I wanted to resolve the situation; not stretch it out, and I wanted something workable. If I had resisted, it might have been a little hard to justify moving me, since I had all outstanding performance reviews with SES bonuses up until that point, but then they could have started attacking the Board, and I did not want that.

I was not ready to go back into private practice. Also, I did not want to move to another location — at the time, I was taking care of my dad, who was in a retirement home near the BIA. Also, I wanted to avoid becoming a “hall-walker” at the DOJ.

I asked Kevin what I could do. I thought (completely naively as it turned out) that they might need some loyal opposition, so I asked whether I could step down as Chair and go to the BIA as a Board Member. Eric Holder, Deputy AG, a Clinton appointee at DOJ, and future Attorney General under President Obama, was still there during the transition. If he had been gone, who knows what would have happened? Also, there had been a regulation change creating more BIA positions. So we agreed that I would step down as Chair, and with Eric Holder’s assistance, I become a BIA Board Member.

It all happened quickly—in a week. I announced that I was stepping down as Chair. It was a fake-y announcement. I said I wanted to spend more time adjudicating cases and less time managing. Lori Scialabba, who was one of my Vice Chairs, and is now the Deputy Director of USCIS, became Acting Chair. I did not change my views about the law; I regularly voted against the majority on issues that were important to me, particularly asylum and other protection issues. But I continued doing my job.

Then came the reorganization where Ashcroft cut Board Members. He removed Board Members John Guendelsberger, Cecelia Espenosa, Lory Rosenberg, Gus Villageliu, and me.  Technically, Lory left before the final cut, and another Board Member who undoubtedly would have been axed, applied for a voluntary transfer to an IJ position in another city. I learned about it when Kevin Rooney (who at one point was my career hero) called me up to his top floor office. He was shaking, and he told me, “You did not make the cut.” He said, “They did not like some of your opinions, particularly dissents where you joined with Lory Rosenberg.”

There was no application or interview process to decide who should stay and who should go. There was no interview. The reason I was cut is because they did not like my opinions—Ashcroft apparently wanted a cowed, compliant Board where nobody would speak up against Administration policies or legal positions that unfairly hurt migrants or limited their due process.

Part of the stated rationale for the reorganization was that there were too many Board Members and it was too contentious, and therefore not “efficient.” In the Government immigration world, “efficiency” is often a buzzword for actions that take away or reduce the rights of migrants. But the workload clearly demanded more than the 12 Board Members that Ashcroft left. A few months after the cut, they had to start using BIA staff attorneys as “temporary” Board Members because they needed more Board Members to do the work. Some of these attorneys eventually became Board Members. So they were upgrading staff, rather than doing independent hiring.   Basically, this was a cover up for Ashcroft’s inappropriate and politically motivated reduction in permanent Board Members. The real reason for the reduction in the BIA’s size was to eliminate opposing views from the dialogue.

ASYLUMIST: How do you think these changes have affected the Board?

PWS: Well, the picture has not been pretty. The summer of 2000 was the last time that an outsider was appointed to the Board. In my view, many of the current Members are “going along to get along,” because the clear message of the Ashcroft cuts was that resisting the majority, particularly speaking up for the rights of migrants, could be career threatening. The Board has abandoned the pretense of diversity. Also, the idea that they can operate effectively with a smaller number of Members is simply a ruse. The BIA uses temporary Members to fill the gap.   But they cannot vote en banc, so this truncates the en banc process. The Board ends up rubber-stamping cases. Also, since mostly three-Member panels, rather than the en banc Board, now issue precedent decisions, the majority of Board Members are able to escape accountability on most such cases because they don’t have to take a public vote. Only the votes of the three panel members are publicly recorded. The BIA also seldom hears oral argument anymore, so it has become very distant and inaccessible to those most affected by its decisions. Moreover, quietly and gradually, the BIA has had to add additional permanent Board Members because the Ashcroft cuts left the BIA short of the number required to do the work. But, there never has been a public acknowledgement by EOIR or the DOJ of what Ashcroft did and why it has been necessary to take corrective action.

I respect the current Board Members, indeed many of them are personal friends, and I certainly recognize the difficulties of their job. But, almost none of the current Board Members have substantial achievements in the private immigration sector, particularly in the area of asylum scholarship and asylum advocacy. They are all appointed from within Government, which is often viewed as a way of bringing in reliable “company people,” who won’t rock the boat. This is supposed to be the Supreme Court of immigration. But it is not actively trying to attract the best and brightest from all sectors of immigration practice, including private practice, academics, clinical professors, and NGO leaders, in addition to those with substantial achievements in government service, in a fair competitive selection process.

One problem is that Board Member positions are less attractive today because they are less visible, less secure, and viewed by some as an assembly line operation after the Ashcroft reforms. A Board Member can be moved to the FOIA unit if they are out of political favor. As a result, the Board doesn’t get the type of outside applicants it really needs – partners in major law firms, tenured academics, respected clinical professors, and high ranking NGO officials, at a time when our system needs their voices more than ever. The example set by Ashcroft is continuing—the current Administration has not changed that. Board Members do not rock the boat, and they all too often do not reflect or fully understand the needs of other constituencies from outside government service, particularly the needs of asylum seekers and others seeking protection in today’s chaotic Immigration Courts.

Maybe the BIA has reduced the backlog, but that has been done with smoke and mirrors. The quality of work has fallen off. They reduced the backlog by compromising the most important function of Board: Guaranteeing due process to individuals appearing in Immigration Court, which requires courageous public deliberation and spirited dialogue on the most important and controversial issues, where dissenting positions are accepted as an essential part the judicial dialogue and therefore supported, rather than suppressed. In my view, since the Ashcroft purge, the BIA has become a deliberative body that no longer publicly deliberates. That’s bad for the public, bad for the justice system, bad for due process, and, actually, bad for the Board Members themselves

ASYLUMIST: And what happened to you, after the “purge”?

PWS: I thought about volunteering to become an IJ, but then I would have had to leave Washington, DC. I did not want to leave my community, plus my dad was still in the area. Kevin floated the idea of early retirement, but I did not want that either.

EOIR created non-judicial positions for some of the “cut” Board Members, like glorified staff attorney positions or senior jobs in the General Counsel’s Office. To show how ludicrous this was, at a time when the Board needed experienced judges more than ever, some of the top judges in the system, who had been selected following a competitive nationwide search, were sent off to perform non-judicial work at the same salary. There was an almost immediate adverse reaction from the Circuit Courts as the Board launched many “not quite ready for prime time” decisions into the judicial review process.

Kevin said I could become an Assistant Chief Immigration Judge (“ACIJ”), but no position was open at the time. I waited for weeks. I was going to be out as a Board Member, but I had not been reassigned. EOIR sent me to IJ training school, but I was still part of the BIA. I went to en banc meetings, but I sat mute. After the IJ training, I did not have a start date or a position. I was a “lame duck,” and I was angry and frustrated.

Finally, I told Kevin that I had to go. There was no reason for me to be there. My things were packed. But then he told me that Ashcroft had directed that I be moved to an IJ position in Arlington, Virginia. He told me that a vacancy had been created overnight, and the Attorney General moved me to the top of the “waiting list.” The Arlington Court was a desirable posting, so there was a waiting list for internal transfers there. Kevin said that someone decided I should be in an adjudication position. It was a huge break for me to get out of the Headquarters “Tower” in Falls Church. I doubt that I would have remained at EOIR as long as I did if I had been in the Tower. I had too much pent up anger, and the Tower would have reminded me of it every day.  The Arlington Immigration Court was a great chance for me to put all of that behind me.

I think someone went to bat for me at the Department; I had no relationship with the Attorney General, so I theorize that someone must have intervened on my behalf to put me in Arlington.  So, I’m probably the only Immigration Judge who got the position without ever applying for it.

ASYLUMIST:  We’ve only covered about two-thirds of your career, but I know you need to get back to the really important things in life, like your kayak, so I’ll ask one last question: Suppose you were the “Immigration Czar,” what would you do with EOIR?

PWS:  As you know from history, being a “Czar” of anything can be a life-limiting opportunity.  Having had several “career-limiting opportunities” already, I think I’ll take a pass on that job. But seriously, I’m glad you asked the question. Here is my “five-point program” for a better Immigration Court–one that would fulfill its vision, drafted by a group of us when Kevin Rooney was the Director: “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all.”

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best. Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos. Evidently, the idea of the prioritization is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts.

Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. If there are to be nationwide policies and practices, they should be developed by an “Immigration Judicial Conference,” patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary “consumers” of the court’s “product.”

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Council. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system like ours. The judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds–particularly those with expertise in asylum and refugee law–have been so few and far between.

Fourth, as you know, I would repeal all of the so-called “Ashcroft reforms” and put the BIA back on track to being a real appellate court. A properly comprised and functioning BIA should transparently debate and decide important, potentially controversial, issues. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca and the BIA itself in Mogharrabi are not being followed.

Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

ASYLUMIST:  Very ambitious! I’d love to hear more, but that would probably take another day or two.

PWS:  Thanks for the offer. But, all things considered, I’m heading out onto Linekin Bay in my kayak. Due process forever!

ASYLUMIST: Thank you so much for your time and your thoughts.  Happy paddling.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

{ 23 comments }

How to Find a Free Asylum Attorney

by Jason Dzubow on September 22, 2016

in Asylum, Asylum Seekers

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

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

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

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

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

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

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

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

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

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

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

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

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

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Refugee in Iconic WWII Photo Dies at Age 92

by Jason Dzubow on September 16, 2016

in Asylees and Refugees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

{ 45 comments }

The Asylum Interview

by Jason Dzubow on September 8, 2016

in Asylum, Asylum Office, Asylum Seekers

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

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

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

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

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

The interview itself is divided into a few parts.

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

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

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

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

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

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

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

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

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

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

{ 159 comments }

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So how do you “pass” as Jewish?

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

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

Non-Jewish Answer: “Three.”

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

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

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

Non-Jewish Answer: “Here is my visa.”

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

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

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

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

Non-Jewish Answer: “Here is $1,070.”

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

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

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

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

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

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

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

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

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

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

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

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