Where Terror Victims Are Treated as Terrorists

Let’s say you own a grocery store in Mosul, Iraq. Your town is conquered by the Islamic State, and an IS fighter comes to your store, grabs your teenage daughter, puts a gun to her head, and threatens to rape and kill her unless you give him a glass of water. You pour a glass of water, hand it to your daughter, and she gives it to the fighter. Now, lets say that you, your daughter, and the IS fighter get to the United States and request asylum. Question: Who is barred from receiving asylum? (a) The IS fighter; (b) You; (c) Your daughter; (d) All of the above.

If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.
If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.

If you guessed “d”, you win. By giving a glass of water to the IS fighter, you and your daughter have provided “material support” to a terrorist, and you are both barred from receiving asylum in the United States. Even though you gave the glass of water under duress to save your child’s life. And even though it was only one glass of water (what we lawyers call “de minimis“). How can this be?

After the attacks of September 11, 2001, Congress greatly expanded pre-existing law in order to prevent terrorists from taking advantage of our immigration system. These laws include the rules relating to “material support,” which one jurist has called “breathtaking in… scope,” see Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (Acting Vice Chairman Osuna, concurring). The opinion continues:

Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives

Id. And anyone who provides any type of support to these “terrorists” is subject to the material support bar.

The problem is that under these rules, lots of people meet the definition of a terrorist or a person who provided material support to a terrorist. And it’s not just people like the shop owners from Mosul. Under our existing law, George Washington would be considered a terrorist. He led an armed rebellion against Great Britain. Ditto for the other founding fathers. Betsy Ross gave material support by sewing a flag for the rebels. There are more modern examples, of course. How about Nobel-prize winning author and Holocaust survivor Eli Wiesel, who was interned in a Nazi slave labor camp where he provided—you guessed it—material support to the Germans. And how about John McCain, who gave material support to the North Vietnamese by participating in a propaganda video (after being tortured while a prisoner of war). Indeed, even Luke Skywalker would be considered a terrorist under the current rules since he participated in armed resistance against the Empire.

Maybe the picture I am painting is a bit too bleak. While there is no statutory exception for the material support bar, the Secretary of State and the Secretary of Homeland Security have the authority to waive certain Terrorism-Related Inadmissibility Grounds (“TRIG”). In that vein, DHS has issued group-based exemptions that allow people involved with certain “terrorist” groups to obtain status in the U.S. It is also possible to receive an individual exemption through a Byzantine (and sometimes infinite) process. If your application is being held because of TRIG, you can inquire about your case status at TRIGQuery@uscis.dhs.gov.

One government entity that does not have the authority to grant a TRIG exemption is the Department of Justice (“DOJ”). This is significant because the Immigration Courts are part of the DOJ. Thus, Immigration Judges cannot grant asylum cases where the alien is subject to TRIG, even when the alien provided material support under duress. In a depressing, but not particularly surprising decision last week, the Board of Immigration Appeals confirmed that there is no implied duress exception to the material support bar:

[A]bsent a waiver [from the Secretary of State or the Secretary of Homeland Security], an alien who affords material support to a terrorist organization is inadmissible and statutorily barred from establishing eligibility for asylum and for withholding of removal under the Act and the Convention Against Torture, even if such support was provided under duress.

Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The problem is that an alien can only get an exemption after he is ordered removed from the United States, and even then, there is no particular procedure to follow to request an exemption. It seems the best an alien (or his attorney) can do is to contact the DHS/ICE Office of the Chief Counsel and request consideration for an exemption. An exemption is only available if asylum would have been granted but for the TRIG issue. In other words, the alien needs to show that if it wasn’t for the TRIG problem, the Immigration Judge would have granted him asylum (helpful hint to lawyers: If your client is barred from asylum solely due to TRIG, try to get the Judge to state that explicitly in her decision; this will help when applying to DHS for an exemption). If the Secretary of Homeland Security grants the exemption, the alien then needs to re-open his court case in order to receive asylum. Legend has it that DHS does sometimes grant exemptions, so it certainly is worth a try, but my guess is that this is a slooooow process.

Blocking terrorists and their supporters from the U.S. is obviously an important goal–it protects our country and it protects our immigration and asylum system. However, the material support bar is much too broad. It fails to distinguish between terrorists and their victims. Worse, it treats victims as if they were terrorists. The recent ruling from the BIA underlines this sad fact. It also illustrates why the law needs to be changed. As we continue to work for immigration reform, I hope we will keep in mind those who have been victimized by terrorists and victimized a second time by our overly-broad anti-terrorism law.

From an Asylum Attorney to the Green Party’s Jill Stein: Hillary Clinton Is Not the Same as Donald Trump

Dr. Jill Stein is the Green Party’s presumptive nominee for President of the United States. In a recent appearance on Democracy Now!, she argued that there was little difference between Hillary Clinton and Donald Trump:

Trump says very scary things—deporting immigrants, massive militarism and, you know, ignoring the climate. Well, Hillary, unfortunately, has a track record for doing all of those things. Hillary has supported the deportations of immigrants, opposed the refugees—women and children coming from Honduras, whose refugee crisis she was very much responsible for by giving a thumbs-up to this corporate coup in Honduras that has created the violence from which those refugees are fleeing. She basically said, “No, bar the gates, send them back.” You know, so we see these draconian things that Donald Trump is talking about, we actually see Hillary Clinton doing.

CtuthuluDr. Stein says that, people are “very quick to tell you about the terrible things that the Republicans did, but they’re very quick to forget the equally terrible things that have happened under a Democratic White House…. It’s time to forget the lesser evil, stand up and fight for the greater good.”

I am a member of the Green Party. I am also an attorney who represents immigrants and asylum seekers. My clients have fled persecution in the Middle East, Africa, and the Americas. They are not people who have the luxury of idealism. They are people whose loved-ones have been killed by war and terrorism. Many of my clients have been attacked or threatened with death. Their first priority is to keep their families and themselves alive. By leaving everything behind–family members, friends, homes, careers–in order to find safety in America, they have already chosen the lesser evil that Dr. Stein speaks about.

We are now almost at the start (!) of the general election season. Are the two major candidates for President really the same, as Dr. Stein argues? My clients don’t think so. They are genuinely afraid of Donald Trump and of what he represents. When Mr. Trump threatens to ban Muslims from the United States, or when he refers to Mexicans (and Americans of Mexican decent) in a racist manner, my clients wonder whether there is a future for them in this country.

One of my clients is a women’s rights activist from Afghanistan. Will she be able to reunite with her young children, or will they be prevented from coming to the U.S. because of their religion? Other clients are a Syrian couple, both doctors, whose first child died in the war. Will they be able to keep their second child safely in the United States, or will they be forced to leave? What about my Iraqi client who was kidnapped and tortured by terrorists? Or my Pakistani-journalist client whose step-father was murdered in retaliation for the family’s democratic political views? And what about my Honduran client who was shot in the head by members of MS-13 because he refused to join their gang? If Mr. Trump had his way, I imagine all these people—and many more—would be blocked from seeking refuge in our country.

Contrast this with Hillary Clinton. Dr. Stein points out that Ms. Clinton supported a coup in Honduras that supposedly helped create the current refugee flow from that country, and that Ms. Clinton favors detention of asylum seekers, including families with children, who arrive at our Southern border. Based on the evidence I have seen, Dr. Stein’s claim about the coup is dubious: Violence was rising in Honduras before the coup, and it continued to rise after the coup. It is very difficult to pin the current waive of migration to the coup (or to credit Ms. Clinton with causing it). As for the detention of families at the border, I have yet to see a solution to this problem that is practically and politically viable. Should we simply throw open our border to all comers? My sense is that the large majority of Americans would oppose such a move. I personally think we should be using more alternatives to detention, but this is a policy tweak; not a complete solution. A leader’s first priority must be to protect our country. How that can be achieved without control of our border, I do not know. In sum, the “lesser evils” discussed by Dr. Stein are difficult policy choices, and reasonable people can differ on the solutions.

More important than her previous policy positions are the positions Ms. Clinton would likely take if elected President. The Democratic Party has moved to the left, and whatever policies Ms. Clinton advances will be determined largely by where the party stands politically. On immigration, it is in a different universe from the Republican Party and from Mr. Trump, whose hardline stance on immigrants is well known. For Dr. Stein to argue that the two candidates’ positions on immigration are similar is like saying that black is the same as white (ok, maybe it’s more like saying that dark gray is the same as light gray, but you get the idea).

I have been a member of the Green Party for over 15 years. I support many of it’s policies. But I have found it very difficult to support the top-down strategy that seems to have characterized the party since at least 2000, when Ralph Nader siphoned off votes from Al Gore. I have always felt that the Green Party should focus on state and local races. A “revolution” (whatever that means) will not come from the top down–it will come from the bottom up. So while I believe the Green Party should run a national campaign in order to raise awareness on various issues, I also believe it should ultimately endorse the Presidential candidate that represents the “lesser evil.” In the current election, that candidate is Hillary Clinton. There are major differences between her and Donald Trump, and those differences may determine whether people like my clients live or die. I hope Dr. Stein will keep such people in mind as we move through this election campaign.

The Asylum Office Scheduling Bulletin, Explained (Sort of)

The purpose of the Asylum Office Scheduling Bulletin (“AOSB”) is to give asylum applicants “an estimate for when they might expect their interview to be scheduled.” At best, though, it’s a very rough estimate. The problem is that the AOSB tells only part of the story, and not even the most important part. Let me explain.

For two bits, Madame Blavatsky can predict when your interview will be. And I'll bet she's more accurate than the AOSB.
For two bits, Madame Blavatsky can predict when your interview will be. And I’ll bet she’s more accurate than the AOSB.

First, what is the AOSB? It is a chart that lists the eight main Asylum Offices. For each office, we can see the filing date of the cases that that office was interviewing in March 2016 (the most recent month listed on the chart). We can also see the two previous months (January and February 2016), which gives some idea about how quickly (or not) the office is moving through its case load.

So, for example, if you look at the Arlington, Virginia Asylum Office, you will see that as of March 2016, it is interviewing people who filed their cases in October 2013. In January and February 2016, Arlington was interviewing people who filed their cases in September 2013. The Chicago office has made the most progress during this period, advancing from May to August 2013. San Francisco is also making steady progress, moving from January to March 2014. Other offices–Houston, Los Angeles, Miami–have moved not at all. But again, this is only part of the story.

One thing the numbers do not tell you is that many of the cases filed prior to December 26, 2014 have already been interviewed. Extrapolating from our own case load, for example, I estimate that in my local Asylum Office (Arlington), approximately 60% of cases filed between October 2013 (the date listed on the AOSB) and December 2014 have already been interviewed. That’s because there was a policy change on December 26, 2014 affecting how the Asylum Offices handle their cases.

What happened is this: In the Good Old Days (and the dates for “the Good Old Days” differ depending on your Asylum Office), asylum cases were filed and interviewed relatively quickly. At my local office, most interviews took place two or three months after filing. Then, starting in 2012 or 2013, and continuing until today, the number of people arriving at our Southern border increased significantly. These migrants are mostly young people from El Salvador, Honduras, and Guatemala. They are fleeing violence and poverty. Some are attempting to reunite with family members already in the United States.

At the border, the migrants ask for asylum. They are generally detained and subject to a credible fear interview (“CFI”). A CFI is an initial evaluation of eligibility for asylum. It is easier to “pass” a CFI than to win asylum, and a large majority of applicants pass the interview. They are then permitted to present their asylum cases to an Immigration Judge or an Asylum Officer. Applicants who do not pass the CFI are deported.

This mass migration (often called “the surge”) affects the affirmative asylum process in a few ways. First, CFIs are conducted by Asylum Officers. These are the same officers who conduct asylum interviews at the various Asylum Offices. If the officers are spending time on CFIs, they obviously are not spending time interviewing applicants at the Asylum Offices. And since most of the people arriving at the Southern border are detained, which costs the U.S. government money, CFIs get priority over the Asylum Officers’ other work. Another way the surge has affected asylum seekers is that the Asylum Offices are prioritizing unaccompanied minors over other applicants. A large percentage of “surge” asylum applicants are minors, and thus their interviews receive priority over “regular” asylum seekers.

When DHS diverted resources away from the Asylum Offices, affirmative cases started piling up. This began in our local office in 2013. About 60% of the case we filed during this period were interviewed in the normal time frame; the other 40% disappeared. The disappeared cases came to be known as “the backlog.”

Once it became apparent that the backlog was not going away, the Asylum Division changed its policy. Starting on December 26, 2014, cases would be interviewed on a first-in/first-out basis. This meant that the Asylum Offices started interviewing the cases in the order received, starting with the cases that had disappeared into the backlog. The AOSB was first published in about July 2015, and since then, there has not been a whole lot of progress. In Arlington, for example, since July 2015, the Asylum Office has only advanced from August to October 2013. Los Angeles is worse. Back in July 2015, they were interviewing cases filed in August 2011. Today, they are still interviewing cases filed in August 2011. Ugh.

The U.S. government has been trying to improve the situation. The Asylum Division has hired more staff, including officers devoted exclusively to CFIs. We now have a system–limited to be sure–to process refugees in-country in Central America and bring them to the U.S. More controversially, we seem to have convinced Mexico to crack down on migrants passing through its territory, and we have prioritized the deportation of “surge” applicants, sometimes at the expense of our international obligations and due process of law. But if the AOSB provides any indication, these efforts have done little to reduce the backlog.

The most important factor impacting movement at the Asylum Offices still appears to be the number of people arriving at the Southern border. As long as these numbers remain high, I am not optimistic that the Asylum Offices will make much progress on the backlog. And the prospects for improvement in the near-term do not look good: Preliminary reports from the border indicate that we can expect more asylum seekers than ever, as migrants seek to enter the U.S. before our increasingly-hostile political climate makes conditions for asylum seekers at the border even more dire.

All these factors, and more (like, how cases and CFIs are distributed between Asylum Offices, how many Asylum Officers are detailed overseas to process refugees, etc.), contribute to movement on the AOSB. Because there are so many unpredictable factors at play, I don’t see how the AOSB can claim any accuracy as a long-term predictor of when an individual asylum interview will be held. To me, it’s kind of like looking at the weather report a month before your vacation. It doesn’t tell you much, but since it’s all you’ve got, you pay attention anyway.

In the end, there is some value to the AOSB: Once you see that your asylum filing date is coming up, you know to prepare for your interview. Also, for applicants, I suppose it is helpful to know that they are not alone in Backlogistan. But as far as predicting interview dates, the AOSB is a mirage in the desert–it may encourage you to keep walking, but it tells you nothing about when you might get your next drink of water.