In Trump’s America, Are Asylum Seekers at Risk of Arrest?

by Jason Dzubow on May 3, 2017

A recent case from Florida has raised concern in the asylum-seeker community. On April 26, Marco Coello, a Venezuelan asylum seeker, went to his interview at the Miami Asylum Office. Instead of meeting with an officer to discuss his case, he was detained by Homeland Security officers.

If you see these guys at your asylum interview, it’s probably a bad sign.

Fortunately, for Mr. Coello, he was released the next day, after various people–including Senator Marco Rubio–intervened on his behalf. An ICE spokesman said that he was detained “because he has a misdemeanor criminal conviction and had stayed in the U.S. longer than his visa allowed.”

I contacted Mr. Coello’s attorney, Elizabeth Blandon, and learned that his conviction was for trespassing (he was originally charged with misdemeanor possession of marijuana). I also learned that the Asylum Office issued a letter on the day of his arrest stating that the case had been sent to the Immigration Court. In fact, Mr. Coello’s case is not with the court, and the issue of jurisdiction (i.e., who will hear his case–an Asylum Officer or an Immigration Judge) is yet to be worked out. Until that happens, his case remains in limbo.

Frankly, it is unclear to me why ICE detained Mr. Coello. His conviction was for a minor violation, which is probably not even a deportable offense. One possibility is that ICE targeted him due to the mistaken belief that he had more than one misdemeanor conviction (trespassing and marijuana possession). Another, more conspiracy-minded, possibility is that ICE arrested Mr. Coello because he was a well-known activist from Venezuela. As the situation in Venezuela has deteriorated, the number of asylum cases from that country has soared. Currently, Venezuelans are filing more affirmative asylum applications than people from any other country. Maybe ICE wanted to send a message in an effort to intimidate potential Venezuelan applicants and stem the tide of cases from that troubled country. Normally, I tend to shy away from such conspiracy theories, but in this case, where the applicant is well-known in his community, I am not so sure.

Mr. Coello’s case is not the only instance of an asylum seeker being detained since President Trump took office, and rumors have been swirling about the new hard-line approach of his Administration. We have heard reports about an HIV-positive Russian asylum seeker, who was detained after visiting the U.S. Virgin Islands and then returning to the mainland (the problem here is probably that a person must go through customs to enter the U.S. from the USVI, and he did not get Advance Parole before leaving and trying to return). He was held for a month before being released. There have also been examples of ICE officials arresting asylum seekers who have been charged with crimes when they appear in criminal court. (And of course, there are the thousands of asylum seekers who arrive via the Mexican border without a visa and who are detained when they request asylum–but this began en masse long before President Trump’s time).

It’s not just asylum seekers who are being detained. Aliens applying for other USCIS benefits have also been arrested. For example, there were five cases where immigrants were notified to appear for USCIS interviews, and were then detained when they arrived at the USCIS office. Apparently, all five had prior deportation orders from Immigration Judges. There’s also the case of a woman who was arrested at a courthouse after filing a protective order against her ex-boyfriend. According to one news source, the woman had an extensive criminal history and had illegally re-entered the United States after being deported.

In addition to all this, there is the now-famous (at least in immigration circles) case from February of a domestic flight from San Francisco to New York where ICE agents checked IDs for everyone disembarking the plane (ICE claims that the searches were “consensual”). Supposedly, ICE was searching for an alien with a criminal record. Turns out, he wasn’t even on the flight.

So what does all this mean? Do asylum seekers risk arrest when they appear for their interview? Or when they show up for a court hearing? Or when they travel domestically? The short answer, at least for now, is no, no, and no.

First, except for the person returning from the USVI, the common denominator in the above cases is that all the aliens had a criminal conviction and/or a deportation order. If you do not have a criminal record or a removal order, there is no reason to believe that ICE will detain you if you appear for an appointment, court date or domestic flight. Indeed, except for the examples above involving criminal convictions and deportation orders, I have not heard about any asylum applicants being detained.

If you do have a criminal conviction (or even an arrest) or a removal order, then there is some risk, but it’s unclear exactly how to assess that risk. How likely is it that a person with a criminal record or removal order will be detained if they appear for an interview? Does the likelihood of detention increase with the severity of the criminal conduct? I do not know, and I am not confident that the few examples discussed above help us evaluate the chance of trouble. But given that there is some risk, it seems worthwhile for anyone with a criminal conviction or a removal order to consult with an attorney before going to an appointment with USCIS.

If I had a conviction or a deportation order, and I was scheduled for an asylum or other USCIS interview, I would want to know a few things from my lawyer. First, I would want to know the likelihood of obtaining the benefit that I have applied for. If my case is very weak and unlikely to succeed, maybe I would be less willing to appear for an interview where I risked detention. Also, I would want to know how seriously the government views my criminal conduct. If the conviction is very minor, I would expect that the likelihood of ICE detention is low (but maybe not, as Mr. Coello’s trespassing conviction illustrates). If the conviction is serious–and many convictions subject an alien to mandatory detention–I would want to know that too. In fact, I would want to know all this before I even apply for asylum or other immigration benefit. Why start the process when it is unlikely I will be able to successfully complete it, especially if applying for the benefit exposes me to possible arrest?

Every person must make his or her own decision, weighing the risk and reward of applying for an immigration benefit. But if you have been arrested or convicted of a crime, or if you already have a deportation order, it would be wise to talk to a lawyer before you file an application or attend an interview with USCIS.

{ 28 comments… read them below or add one }

Soliman August 17, 2017 at 4:44 am

Hey Mr. Jason,
I am asylum seeker. I’ve supmitted my case in Los Angeles office, but I’ll be moving to New York next week, and I want to move my case to New York office. What should I do please ?

Reply

Jason Dzubow August 17, 2017 at 6:45 am

File form AR-11, available at http://www.uscis.gov. Once it is filed, you should probably contact the LA asylum office to make sure your case is transferred. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

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Ertugrul August 9, 2017 at 11:26 am

Should an asylum seeker accept government assistance programs?

one of the most confusing questions that I received contradict answers about it:

I am pending asylum. I used to receive Medi-CAL, which is like Medic-AID but for the Californian version, for one year for myself, wife, and 2 kids. I got new job. I stopped Medi-CAL for myself and wife, and kept it for kids as I am still entitled with my income level.

USCIS website says, that a person will not be considered a public charge until he receives government assistance in a form on “CASH”

I asked my lawyer, he said: any other benefits that are not in a form of cash assistance will not affect your future proposed application for a green card

Another immigration lawyer said: Medic-AID people who has not naturalized yet and receiving government benefits will be affected by future, and their application for a citizenship or green card can be denied

please advise?

Reply

Jason Dzubow August 9, 2017 at 10:22 pm

I do not know for sure about the GC application, but it should have no effect on your asylum case. Also, I doubt it would harm your GC application, as asylees (people granted asylum) are eligible for certain public benefits and they can still get their GC. Take care, Jason

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Angela June 28, 2017 at 7:55 pm

Dear Jason,
I really appriciated what you have been doing for immigrants, you are like a light in the hopeless and darkness place.
I have some question regarding file an asylum for sprouse. These are facts about us
1. My boyfriend is from Ukraine and has filed for asylum since 2 years ago and now he recieved 2times of ETA and still waiting for interview.

2.I’m originally from Thailand but now working in other country.

3. We have been in long distance relationship for 3 years and really want to get marry soon.

My question is 1. Will it is possible for me to join his case as a sprouse after I came to the state and get married with him?
2. Will it be a problem if I am not from one of the country that can seek for asylum status?

I am getting nervous everytime I seen news now aday, I wish thing to get better for everyone.

Reply

Jason Dzubow July 3, 2017 at 10:08 pm

If you come to the US and marry him prior to the decision in his case, you can join his case, and also get a work permit. It does not matter if you are from a country that is safe, if he wins asylum, you will get asylum as well (if you are legally married). Take care, Jason

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Angela July 6, 2017 at 7:46 pm

Thank you so much for you clarification. I wish you to take care of his case. Is there any chance I can contact you or your team who can help us in TX? He filed his case on May 2014 so I believe it’s happening soon.

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Jason Dzubow July 7, 2017 at 6:45 am
Shriju July 19, 2017 at 12:16 am

Hello Jason,
I have a question about health insurance. How can we get health insurance when we waited asulum. I have EAD but have not aprroved yet. So what is health insurance choice with low income?? How asylum waiting people get health insurance? Thank you for your help.
Shriju

Kamal August 6, 2017 at 2:38 pm

If you want health insurance yiu need to have SSN EAD ..then you go to medicare office and submit all documents copy n source of income proof..then will enroll you..

Hassan June 27, 2017 at 5:43 am

Hi Jason,

We are Egyptians and parents for 3 Us citizen kids. recently our country has a lot of sexual harassment crimes and our police is too weak to interfere.
we are thinking to file an asylum case however we are afraid if rejected in the hearing session we will be forced to leave without a single change to go to the court as per the new rules of Trump.
Regards,

Reply

Jason Dzubow June 27, 2017 at 6:24 am

I am not sure the case you describe is a very strong case, but you can apply. If you lose, you go to court to see a judge. Nothing President Trump or the Supreme Court have done has changed this part of the system. Take care, Jason

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PAC June 11, 2017 at 4:09 pm

A friend of mine has applied for asylum in the US. She has a lawyer that helped her with the process and the application has been filed in Florida. Now, she is living in a different state. She hasn’t no reported her new address to immigration since she has friend who lives at the address she has reported on her application and this friend forwards her any mail she receives. She has applied for the renewal of her EAD and received a form asking for photos, report a new G28 and new address, if applicable. I have advised her to report her new address, other people has advised her not to do it. Her dilemma is that if she reports a new address, the lawyer that she hired will not be able to represent her. I am concerned that immigration will be able to find that she is no longer living in Florida, since she has a driver’s license in the state she is currently living. At the driver’s license office, they verified on the Homeland security database that her work permit was valid before issuing the license. What will be the consequences for her for not reporting her new address? Could her asylum petition be denied and she will be deported?

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Jason Dzubow June 12, 2017 at 9:49 pm

I did a blog post about this on June 24, 2015 – maybe that would help. The main problem we have seen is that if the asylum office thinks you are lying about your address, they may think you are lying about the rest of your case and deny the application. Also, they could refuse to interview the person if they believe that the person is in the wrong asylum office. It would be better if she could keep everything (driver’s license, taxes) in FL if she wants to keep her case there and if that is her permanent address. Otherwise, there is some risk that not informing the asylum office will affect her case. Take care, Jason

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Elias Zakarias June 2, 2017 at 5:18 pm

I think it is important to make a distinction. If you apply for asylum before Sect. 240 removal proceedings are initiated, then the asylum office has jurisdiction over the asylum application. If there is a crime or other sufficient ground of inadmissibility, the removal proceedings can be initiated. In that case, the IJ will have j/d over the removal proceedings, while the AO will continue to have j/d over the 589. The DHS counsel may agree to termination, in which the IJ can terminate. The proceedings must be admin closed despite objection from DHS counsels.

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Jason Dzubow June 4, 2017 at 7:46 am

If a person is detained and placed into removal proceedings during a pending case with the asylum office, we have not seen the asylum office adjudicate the case. Rather, they say that they do not have jurisdiction and the case – including the asylum case – will be with the immigration judge. Take care, Jason

Reply

Elias Zakarias June 7, 2017 at 10:30 am

The Court has the authority to administratively close removal proceedings under appropriate circumstances under, such as to promote “efficient management” of the Court’s scarce resources. Matter of Avetisyan, 25 I&N Dec. 688, 692, 694 (BIA 2002).
The Code of Federal Regulations governs which agency has jurisdiction to review asylum applications, and they clearly state that the DHS, through the USCIS, has initial jurisdiction over affirmatively filed asylum applications 8 CFR 208.2(a). The regulations also require that upon proper filing, the USCIS “shall adjudicate the claim” 8 CFR Sect. 208.9(a), 1208.9(a).
The Regulations give no jurisdiction over adjudication of an application of an application for asylum to the Immigration Court in proceedings, except when the application is filed after service of a Notice to Appear 8 CFR 208.2(b), 1208.2(b).
When a Respondent files his application for asylum before he was served with an NTA, the USCIS retains jurisdiction over the application for asylum. These proceedings should be closed until the time that the DHS adjudicates the application for asylum present before that agency

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Jason Dzubow June 8, 2017 at 6:26 am

We have used such an argument successfully in the case of a minor asylum seeker with no criminal record, but if an asylum seeker is arrested and convicted for a crime, he is removable based on the conviction, and I can’t imagine that the Judge would give up jurisdiction, even if there is a pending I-589. I only have one client in this situation, and based on my conversations with DHS and the posture of the case, I see no way that the Immigration Court will allow the case to return to the Asylum Office. Take care, Jason

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Jade May 23, 2017 at 12:15 pm

HELLO,
I am Syrian Asylee , I got my asylum approval 7 month ago, and I applied for travel document to see my Parents in Lebanon. Today I got the approval from USCIS Offic, So what is the next step? I am worry if they will not let me go back to USA, so I need yor recomndaton.
thx

Reply

Jason Dzubow May 23, 2017 at 10:08 pm

You should be able to travel and return. However, there are several pending court cases that could affect your ability to return. If you travel, you need to keep an eye on the news, and if it seems that things are changing in the US, you would need to come back immediately. Take care, Jason

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MAZ May 23, 2017 at 10:46 pm

Hi, Jade,

Congratulations on approval of your Asylum, can you please tell how long you had waited after your asylum interview for the decision, I really appreciate your answer in this regards,
Thanks
MAZ

Reply

Jade May 24, 2017 at 12:02 am

Hey,
From the day I applied to the day I got it about 3 years

Reply

nagham May 24, 2017 at 9:07 am

Hello Jade
Can you tell me in which office u applied? also did u have any written evidence with u to show in interview ?

Reply

MAZ May 24, 2017 at 12:13 pm

Hi, Jade,

Thanks for reply but I mean how long it takes after the interview to get your decision, I have my interview 8 months ago but no decision yet,
Thanks
MAZ

Reply

MAZ May 24, 2017 at 12:16 pm

I waited 26 months for interview and waiting for 8 months for decision and still counting
Thanks
MAZ

Jade May 24, 2017 at 4:07 pm

Hello,
One year and 2 mobths
Thx

Reply

MAZ May 24, 2017 at 5:49 pm

Thanks

Reply

Jason Dzubow July 19, 2017 at 6:35 am

I do not know about this – I recommend you contact a local non-profit and ask. They often know about such things. I did a posting on September 22, 2016 that has links to non-profits – maybe that would help. Take care, Jason

Reply

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