In Defense of Muslim Refugees

Since the vicious attack last week by Muslim extremists in Paris, attention in the U.S. has focused on our country’s refugee policy and President Obama’s decision earlier this year to admit an additional 10,000 Syrian refugees (above the normal refugee ceiling of 70,000). More than half of the nation’s governors have indicated that Syria refugees are unwelcome in their states. Paul Ryan, the new Speaker of the House, is pushing legislation to hinder the admission of Syrian and Iraqi refugees. And most Republican presidential candidates have expressed their opposition to resettling Syrian or Muslim refugees in our country. Senator Ted Cruz has called the plan “absolute lunacy.”

When we say "no" to a refugee, what does it say about us?
When we say “no” to a refugee, what does it say about us?

As an immigration attorney who specializes in political asylum, I represent clients whose lives have been profoundly disrupted by war and terrorism, who have been threatened or harmed by extremists, and who have lost loved ones to terrorist attacks. Many of my clients come from Muslim countries, such as Syria, Iraq, Afghanistan, and Egypt. These are people who have devoted their lives–and often risked their lives–to promote democracy, women’s rights, and human rights. Many have served shoulder-to-shoulder with soldiers from the U.S. military in places like Afghanistan and Iraq. Indeed, I suspect that many of my Muslim clients have risked and sacrificed far more in the defense of liberty and in support of U.S. policy than the American commentators who routinely disparage them.

In the face of barbarism from ISIS and other extremists, we as Americans should not abandon our friends or shrink from our humanitarian commitments. As the leader of the Free World, we must lead not only with the sword. We must also lead by demonstrating our values, and by showing the world that we do not abandon those values in difficult times.

During the refugee crisis that followed World War II, the U.S. committed itself to assisting displaced persons. Since then, we’ve absorbed—and been enriched by—tens of thousands of refugees from Western Europe, the Soviet Union, Indochina, Africa, the Middle East, and the Americas. We are, to a great extent, defined by our generosity towards the dispossessed: “Give me your tired, your poor, your huddled masses yearning to breathe free.”

Allowing ourselves to be intimidated into compromising these humanitarian values would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. Indeed, our asylum and refugee programs are probably more secure than any other aspect of our immigration system.

Also, many of the Muslims who have sought sanctuary in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, no one will cooperate with us going forward.

Finally, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.

In the aftermath of the Paris attack and the claim by ISIS that it will send infiltrators to the West disguised as asylum seekers, the desire to re-examine security procedures is understandable. But as we evaluate our humanitarian policies, we should keep in mind people like my clients and the many Muslims who have demonstrated their fealty to us in our fight against extremism.

We should not allow the evil deeds in France to cause us to retreat from our humanitarian obligations, which would compromise our principles, or to weaken our commitment to our Muslim allies, who are crucial in our battle against Islamic terrorists. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. When considering Muslim refugees and asylum seekers, we should be guided by our highest ideals, not by the dark vision of our enemies.

Some (Unsolicited) Advice for the Asylum Office

When the backlog began in 2013, no one quite knew what was happening. How long would the problem persist? How would the delays affect asylum seekers? How would the delays affect the integrity of the asylum system?

It's that time of year, when annoying relatives and (marginally less) annoying lawyers, give you advice.
It’s that time of year, when annoying relatives and (marginally less) annoying lawyers, give you advice.

Two-and-a-half years later, we have some sense for what is happening, and the Asylum Division has made some adaptations to the new reality. It probably comes as no surprise that asylum seekers–and their representatives–are not satisfied with the current situation. Hence, I offer here my own ideas for improving the system. The only criteria for the below suggestions is that they do not cost anything (or at least, not much). It would be easy to propose expensive solutions (hire lots more asylum officers!) but in the current climate, I don’t think that is realistic. Anyway, without further ado, here are my humble suggestions to save the world:

Don’t Create Unrealistic Expectations: Most Asylum Officers are nice, and nice people do not like to make other people feel bad. And so what we frequently see is Asylum Officers giving a time frame for the decision. More often than not, this time frame under-estimates the wait time; sometimes, by a lot. As a result, asylum applicants have their expectations raised and then dashed. It would be far better to avoid this altogether. Unless they really know for certain, Asylum Officers should refrain from giving a time frame for the decision. If the decision comes quickly, the applicant will be (hopefully) pleasantly surprised; if it comes slowly, at least there will not have been an expectation of a quick decision.

Distribute Workloads More Evenly: Waiting times between Asylum Offices vary widely. Houston is currently interviewing people who filed their cases in May 2014; Los Angeles is interviewing people who filed their cases in August 2011. On it’s face, it appears that people in LA wait about three years longer than people in Houston. It should be possible to assign cases in a way that reduces this disparity. Much of the delay is due to credible fear interviews, which take place remotely (by video conference or phone). Why can’t these be processed in the faster offices, so that the slower offices can focus on their backlogs? In this way, perhaps wait times could be made more equitable.

Prioritize People Separated from Family Members: It is much easier to tolerate a long delay if you are not separated from your spouse and minor children. The asylum form, I-589, requests information about the applicant’s spouse and children. In cases where the spouse and minor children are outside the U.S., the Asylum Offices should prioritize those cases. It is really intolerable to remain separated from small children for 2, 3, and 4 years, or more. By the time you see your child again, she won’t even know you. Not to mention that in many cases, the family members are living in unsafe conditions. This is by far the worst part of the backlog, and the Asylum Division really should address the problem.

Standardize the Process of Expediting Cases, and Make the Process More Transparent: It is possible to expedite an asylum case. One way to do this is through the “short list.” When an applicant adds his name to the short list, he will be called for an interview if a slot opens up. The short list can be faster than the regular queue. However, short lists open and close, and not all offices have short lists. The Asylum Offices should post information about the short lists on their websites. Perhaps the short lists can be limited to people separated from their family members. At the minimum, each Asylum Office could post on their website whether a short list is available, and whether it is open to new applicants.

It is also possible to expedite a case for emergent reasons (health problems, family members overseas in jeopardy, etc.). However, there are no hard and fast rules related to expediting cases. Each Asylum Office should have a set of rules for expediting, and those rules should be posted on their websites: What are the criteria for expediting a case? What evidence is required? How and when will a decision to expedite be made? Currently, we are in the dark about these questions. The result is that applicants are trying again and again to expedite, which wastes Asylum Office time (and attorney time) and which creates unrealistic expectations about whether a case might be expedited.

Make the EAD Valid for Two Years and Have the Receipt Automatically Extend the Old EAD: Employment Authorization Documents–EADs–are currently valid for one year. There are also delays for people applying for and renewing EADs. The result is that many people see their EAD expire before they receive the new card. This causes them to lose their jobs and their driver’s licenses. If EADs were valid for two years (or longer), it would greatly reduce the problem. Also, USCIS should adopt the same policy for EADs as they have for the I-751: The receipt for the EAD should automatically extend the existing EAD until the new card arrives.

Create a FAQ Page: Tens of thousands of asylum applicants are waiting for their interviews or decisions. Waiting is difficult enough, but waiting in the absence of reliable information is even worse. The Asylum Office Scheduling Bulletin was a good start—at least now we know who is being interviewed today. But why don’t the Asylum Office websites have a link to the Scheduling Bulletin? And why don’t the paper asylum receipts include the Asylum Office website addresses? The little information that is actually available should be made more accessible.

In addition, the Asylum Division should create a FAQ page (Frequently Asked Questions). What has caused the delay? Why are there delays after the interview? How do I inquire about the status of my case? How do I request expedited review? What happens if I move? How do I travel outside the United States? These are common questions, and there really are very few places to find reliable answers, especially for those applicants who cannot afford an attorney.

The benefit of providing reliable information to asylum seekers is hard to underestimate. If I might analogize to my own fear of flying. I hate to fly (which is annoying, since I like to be in other places), and it’s especially bad when there’s turbulence. But if the pilot announces,“We’re experiencing some normal turbulence. We should pass through in 10 minutes,” I immediately feel better. The psychological benefit of being informed is a real benefit, and the psychological harm of not knowing, is a real harm. Providing more information to asylum seekers, from a reliable source, would be a big help.

Finally, I will add one “bonus” suggestion, which I’ve made before. USCIS should allow for premium processing of asylum applications. I believe the primary objection to this idea is the appearance of impropriety: It looks bad when an asylum seeker is able to pay money to expedite his case. However, I still believe that the benefits of premium processing outweigh this concern. Those who oppose the asylum system will never be convinced, and there is little point in trying to appease them, especially when the cost of appeasement is further harm to people seeking asylum.

OK, Asylum Division, there you have it. Now, let’s see what you can do.

Interview with an Immigration Judge: John F. Gossart, Jr.

In 2014, Immigration Judge John F. Gossart, Jr. retired after more than 30 years on the bench. Judge Gossart sat in Baltimore, where he was well-known and well-liked by attorneys on both side of the aisle (I myself had many cases with him), and his absence is still felt in his Court. Aside from his judicial work, Judge Gossart was (and is) an adjunct professor of law and a legal educator in the wider community. The Asylumist caught up with Judge Gossart to ask about his career, some memorable moments, and his opinions on the issues of the day in Immigration Court:

A photo of the official photo of Judge John F. Gossart, Jr. (it's the best we could do!).
A photo of the official photo of Judge John F. Gossart, Jr. (it’s the best we could do!).

Asylumist: How did you get to be an IJ? And why was this position interesting for you?

John F. Gossart: I came to immigration law totally by accident. I wanted to work for the Department of Justice, in public sector law, and I applied for a position there. While I was waiting, I hung my own shingle and practiced law out of my house. When DOJ hired me to work at INS (the Immigration and Naturalization Service), I couldn’t even spell immigration.

My first position there was as a Naturalization Attorney. At the time, applicants for naturalization had to file their petitions in U.S. District Court and present two character witnesses. I would interview the petitioner and the witnesses, and make recommendations about whether the applicant should be permitted to naturalize. I remember one Judge in the Eastern District of Virginia—“Roarin” Orin Lewis—who roared at all the attorneys. In those days, homosexuals were ineligible to naturalize because they were considered “sexual deviants.” I argued for a grant of naturalization for an admitted homosexual because he abstained from sexual activities. The petition was denied by Judge Lewis. In another case involving two Russian “swingers” who had admitted to adultery, Judge Lewis called me into his chambers and read me the riot act. The two were consenting adults, but that didn’t matter to Judge Lewis. He denied the case. At the time, the statute held that persons who committed adultery lacked good moral character.

Then, after a stint as Deputy Commissioner of Naturalization, I became a trial attorney for INS. Eight years later, I had the opportunity to become an Immigration Judge. On October 30, 1982, I was appointed an IJ by Attorney General William French Smith.

As an IJ, I rode circuit and heard cases in many locations: Baltimore, DC, Philadelphia, Pittsburg, Buffalo, Hartford. I loved the job. I enjoyed the challenge and I loved dealing with people. One concern for me was that the private bar might view me as a prosecutor in a judge’s robe. On the other hand, sometimes when I ruled in favor of the respondent, people at INS complained that I had “crossed over.” In fact, I don’t think I played favorites; I just tried to follow the law. My mantra was to be “Fair, Firm, Decisive.”

Asylumist: Are there any cases that you worked on that were particularly memorable?

JFG: I was the IJ in two Nazi war criminal cases. In the case of George Theodorovich, the trial lasted 3½ weeks. He was a Ukrainian police officer who came to the U.S. under an executive order. He denied all charges and claimed that the case against him was a Russian plot. I went to the Russian embassy to review documents, and at trial, several Survivors testified. I entered a 154-page decision (my longest decision) where he was found deportable. He appealed to the BIA. While the case was on appeal, Theodorovich fled the U.S. and went to Paraguay.

Asylumist: As an IJ, what are some common problems that you see when lawyers present cases?

JFG: Dr. Stanley Sinkford, a renowned doctor and professor at Howard Medical School, always told his medical students, “Proper Preparation Prevents Poor Performance,” meaning it is usually a lack of preparation that leads to problems. Some lawyers become too comfortable with their role; they think they can come into court and wing it. Also, proper vetting of clients and—more importantly—witnesses is very important. You cannot meet the witnesses 30 minutes before the hearing and hope everything goes well. I’ve also seen instances where the lawyer did not know the applicable law. This was a particular problem among lawyers who dabble in immigration law. A number of attorneys came before me who thought that the IJ has equity powers. They would ask the court to allow the respondent to stay in the U.S. even where there was no basis to allow him to stay. I fear that such lawyers portray this idea to their client—that the IJ can let you stay, even without a legal basis for relief.

Asylumist: How do you handle cases where you feel that the applicant may have relief, but lawyer errors and/or ineffective assistance of counsel might cause the alien to lose?

JFG: As an IJ, you almost never want to admonish an attorney in public; it is better not to be on the record or in the presence of the client. I have talked to lawyers in chambers, however. I’ve told them, “If you are not familiar with law, you need to become familiar. You have a duty to do your best for your client.” Also, if I am aware that the client appears eligible for another form of relief, I will ask why the attorney is not pursuing it. Attorneys appreciate that a Judge is willing to talk to them in private.

Asylumist: Have you had cases where your gut tells you to rule one way, but the evidence requires that you rule the opposite way? How do you deal with that?

JFG: That is when a judge feels stressed, alone, and badly about the decision he must render. Such decisions are difficult; I suppose that’s why we’re paid the big bucks. But we are judicial officers, and we are required to follow the law. It’s been said by the Supreme Court in Knauf v Shaughnessy, “Judicially we must tolerate what personally we regard as a legislative mistake,” but that is our role as an administrative judge. Your gut may tell you one thing, and you may have sympathy for the person in front of you, but unless that person satisfies the requirements for relief under the law, you cannot get to discretion, and you cannot provide equitable relief. As a Judge, we have to make these kinds of difficult decisions. It is what the law requires. Ultimately, to do justice, you have to read, know, and follow the law.

Asylumist: Over the past couple years, we’ve heard reports about the problem of IJ burnout. Was that a factor for you? How did you protect yourself?

JFG: I was constantly assessing myself, and I remained on-guard for burnout. Whenever necessary, I took a recess from court, or I took a day off. My colleagues were very supportive in this regard; it was helpful to have someone to vent to.

EOIR recently held a conference in Washington, DC—the first live conference in five years. Such events are very important. Judges are able to bond with colleagues. They brought a psychologist to discuss stress.

Asylumist: What do you think EOIR could do differently to better support IJs and make the system more efficient?

JFG: First, we need more judges and this should be done promptly. Preferably, we need candidates with a strong immigration or judicial background. More than 50% of the IJ bench is currently eligible for retirement. So we need regulations for phased retirement and we need to implement the Moving Ahead for Progress Act. This Act would permit IJs to work part time, which is something many IJs are interested in.

Also, we should institute senior status for IJs, so retired IJs could return to the bench to help with the workload. I had proposed this idea several years ago, but personnel felt it would be difficult to do. However, in the last year, EOIR has instituted a recall program, which allows Department of Justice attorneys with sufficient experience to fill temporary judgeships. This program seemingly targets BIA staff attorneys and OIL attorneys; it has not been extended to retired IJs. The Immigration Judges’ Association has been advocating for senior status as well, so retired IJs could return to help address the backlog or cover for a Judge who is absent. Imagine how efficient it would be for someone like me to step in and work for a week or a month while another IJ was on detail or leave. We have a number of IJs who are retired. They have decades of experience and are willing and able to do this.

In addition, we need to provide courts with adequate support staff, and IJs need more administrative time to keep up with motions, read case law, and stay on top of the profession. Judges also need more training—one live conference in five years is not adequate.

I would also like to see implementation of the sanction recommendation that was part of the 1996 statutes. This would give IJs more authority to sanction attorneys for misconduct. They could impose fines. Some lawyers need this type of lesson as a wakeup call. If we are to implement a sanction process, it should apply equally to private attorneys and government counsel. DHS had wanted sanctions only against the private bar, but IJs generally oppose that idea—you have to treat both sides the same.

Asylumist: The definition of a particular social group (“PSG”) has expanded pretty significantly in the last 20 years, mostly through litigation. What is your opinion of this? How do “flood gate” arguments influence IJ thinking regarding PSGs?

JFG: Since the 1980 Act came into effect, it has been litigated and litigated. I think this is healthy. PSG is the most difficult provision of the statute; other protected categories are more self-explanatory.

As to the flood gate argument, as an IJ, we cannot have that as a factor for consideration.

One area I struggled with was PSG cases involving domestic violence. We are still waiting for the government to issue regulations to help guide us. Maybe domestic violence cases would be better addressed through legislation instead of trying to fit them into a PSG, especially when we have such little guidance. Such cases are difficult because they are often very sympathetic. Perhaps it might be better to pass legislation to benefit the abused, rather than to try to figure out how to craft this group of abused individuals into a particular social group.

Asylumist: It seems fairly common for cases referred from the Asylum Office to the Court to be granted by IJs. Do you think this is a systematic problem? Might there be some sort of “fix” that could take place between EOIR and the Asylum Offices?

JFG: To do that, you would have to change the administrative asylum process, and this is a question of resources. When an asylum case is presented to the Asylum Office, there are no witnesses, there are time constraints, the applicants must bring their own interpreters (who may be good—or not). It is an imperfect system.

When the case is referred to Court, many applicants get a lawyer—and that makes a big difference. Attorneys know what evidence to include, they present witnesses, they can get a psychological evaluation. This evidence is often not presented at the Asylum Office. The system we have in Court is a more perfect system. But of course, we like the Asylum Office. Every case they grant is one less case on the Court’s docket.

If you don’t want applicants to get two bites at the apple, you can require asylum applicants who are out of status to go directly to Court.

Asylumist: Do you have any thoughts on how to reduce the backlog?

JFG: DHS could better prioritize which cases are prosecuted. We could have more pre-trial hearings. Why have a lengthy hearing if DHS won’t oppose the case in the end? There could also be more stipulations and more administrative closures. Of course, there is always the issue of Monday-morning quarterbacking. What if a person whose case is admin closed commits a crime? The government does not have the resources to prosecute all cases, but how do we know which cases to pursue? I do think if DHS had more time for stipulations, it would ultimately save time for everyone.