The BIA on Firm Resettlement

One of my professional goals in life is to get a published decision from the Board of Immigration Appeals (“BIA”). It won’t be easy–the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation’s Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.

I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.

Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are “persuasive,” meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.

My case centered on a legal construct called “firm resettlement.” An alien who has been “firmly resettled” in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client’s husband had been a high-ranking member of his country’s government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum–hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge (“IJ”) denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.

During the pendency of the BIA appeal, the home government assassinated my client’s husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.

On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.

DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government’s argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.

Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.

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80 comments

  1. […] country or had an offer from a third country to reside there permanently, that could constitute firm resettlement, which is another bar to asylum. If you think any of these bars may apply, you would be […]

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  2. Hi Jason, I hope you’re doing great!

    I recently withdrew my asylum in the US and landed in Canada as permanent resident. Soon after I applied for H4 visa and returned to the US. My country of nationality has just been redesignated for TPS. My question is; does firm resettlement bar me from applying for TPS ?
    I was in canada for two months ( nonimmigrant visa processing time in canada) and does it affect my physical presence in the US.
    Your help is much appreciated!

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    • Firm resettlement is a legal concept that does not apply to TPS. If you are a resident of Canada, I do not think it blocks you from TPS, but I am not certain – you would have to check the requirements for TPS or talk to a lawyer. I have not done many TPS cases, and I have never done one where the person was also a resident of some other country. Take care, Jason

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  3. Please send me a copy of this decision. Thank you.

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  4. Please add me to your mailing list.

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    • Sorry, we do not have a mailing list – we are not so sophisticated. You can “friend” the Asylumist on Facebook, as I post every new post there. Take care, Jason

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  5. Hi Jason,

    please let me know if you accept new clients and if yes, please advise if you can represent California-based clients.
    My husband filed for political asylum back in 2016 including me in his application. We are still waiting for an interview. He has just one citizenship but I have dual citizenship and was living in the country of my second citizenship for 6 years prior to coming to US with my husband. My husband never lived in that country, just visited a few times. We officially got married in US when we got here on B-2. My question is as follows: will my dual citizenship affect our asylum case? If yes, should I (we) also prepare to explain why we couldn’t live in the country of my second citizenship? Can this be a potential bar from asylum? Also, we made some mistakes in the application such as by answering NO the question whether my husband or I have another citizenship (even though I attached just my passport from my second country where I have my visa stamped). Can this be a problem when we request to amend this during the interview? I also have to mention that my husband got his master’s degree from third country where he also lived for 3-4 years. Thank you in advance.

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    • We sometimes do cases in other states, but it sounds like you are pretty far along in the case, and it might be easier for you to find a local lawyer who can assist with the case and attend the interview. If you want to contact me, my email is jdzubow@dzubowlaw.com. If your husband is the principal applicant, your dual citizenship should not be a problem, unless he also has legal status to live in one of your countries. You may need to explain that your citizenship does not confer status onto him. Also, he may need to explain (with evidence) that he did not get any status in the country where he studied for 3-4 years. As for the mistakes, you can correct those by submitting additional evidence and telling the officer at the interview, I doubt this will be a problem. Take care, Jason

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  6. I came from a third developing country where I had no affiliation or settlement ,I only worked for 1 year in that third country .I used my own country of origin passport while flying to the US .I applied for asylum & waiting for my interview will it affect my application based on firm resettlement ?

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    • I doubt it, unless that country gave you an offer of permanent status. You may want to get evidence that the country does not offer asylum and did not give it to you – for example, if you have a temporary visa to that country, and the visa has now expired. Or you can get a copy of that country’s laws about citizenship to show it does not apply to you. Or a letter from a lawyer in that country. Take care, Jason

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  7. Please send me a copy of this!!! TIA!!!

    lisawartrla@gmail.com

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  8. Regarding firm resettlement; if an alien had been resettled [was granted permanent status in a third country] but then abandoned it, several years before coming to the US [and now is legally barred from returning to the third country] would the firm settlement bar still be applicable. Assume that the basis for asylum only materialized after the alien had abandoned the third country.

    Thanks

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    • The problem is that the BIA has not provided sufficient guidance on this, so the answer may be that the person is barred – that is similar to the scenario described above- the Judge and the DHS lawyer viewed firm resettlement as a door. Once you walk through it, you are barred, regardless of whether you can return to the country of firm resettlement or not. The BIA, in my case, disagreed, but the decision was not published and there is no published guidance on this point, so it will be up to the Judge to interpret the law and make a decision. Take care, Jason

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  9. Jason – Is there a way to get a copy of the unpublished decision in the case that you detailed in the post above that dealt with the firm resettlement issue? I wasn’t able to locate it on the website you mentioned.

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  10. Hello Jason,
    Thanks for helping alot of people here.
    To apply for Green card under granted Asylum, the person must be physically 1 year in USA with no gab? Because it says 1 year so it confused me if I wanna to travel?
    Thx

    Reply
    • Short trips should not matter. If you are traveling more than a month, maybe talk to a lawyer to make sure you preserve your residency for purposes of the GC. Also, if you travel, you should use a Refugee Travel Document, form I-131, available at http://www.uscis.gov. Take care, Jason

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  11. Dear Jason,
    I have a pending asylum and now I got a job in Texas and planning to move from DC.
    Do I have to fill the AR11 form?
    Does it affect the status?
    Please write me what do I have to do as much as detail you can.

    Thanks alot and God Bless you.

    Reply
    • If you move from DC to TX, you must file an AR-11, and then your case will be transferred to the office in TX. You will keep your place in the queue, and you will be interviewed as if you originally filed the case in TX. Take care, Jason

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  12. Hi Jason, I am from Syria and I have a very complicated issue and could not find any reference to help me taking a good decision… Long story short and thanks in advance:
    – I received a notice to appear for a FORTH asylum interview within 4 years and I am expecting a DENIAL due to change of circumstances (Firm Resettlement in Canada which took place after my third interview). I still have a valid status (OPT and TPS), I have a very well job and the employer started a PERM application for employment based sponsorship…. What is the best action to be done:
    1- Withdrawal my asylum case before the interview and continue with my PERM application “Will that affect the future green card process”?
    2- Don’t show to the interview and be referred to a JUDGE as the asylum office notice I 589 stated “Will that affect the future green card process”?
    3- Go to the interview and see how it goes with possible withdrawal during or after the interview “Will that affect the future green card process”?
    4- Go to the interview and compete it and wait for the decision (Which I expect to be a denial) and go back to my legal status with no chance of a court appealing “Will that affect the future green card process”?
    Thanks for your thoughts!

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    • I think you need to go to the interview. You do not want the case to go to the judge and then you get a deportation order – that will make other paths for you more difficult. If you are sure about the denial, you can go to the interview, show them evidence of your status in Canada, and ask to withdraw the case. You should also have evidence that you are in valid OPT status and you have TPS. With all this, they can close the case (hopefully), and you can continue here in OPT, and then (again, hopefully) adjust status based on employment. Good luck, and please let us know how it goes. Take care, Jason

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      • Thanks, very helpful as usual. I am leaning toward this option and to be so clear and honest since I have never played games at all.. I already informed them that I received an immigration visa to Canada at the third interview 2 years ago.
        Several points came to my mind and I already know that no one can predict what’s going to happen, but thanks in advance for the advice::
        – I am pretty sure of the denial decision based on the firm resettlement bar after getting a permanent residency status in Canada… Although I have no ties to Canada (Visited only for 30 mins), and I already have strong ties here in the US (Finished schooling with a masters degree, got my license, have a good job and good standing status with 4.5 years in the US without being out of status) and although that I need to REDO all these steps of long schooling if I ended in Canada to start working again 🙁 .. but I felt that the asylum officer will not be able to accept the case with the bar of firm resettlement!! Do you feel that I can defend the case and keep my application depending on these facts? or it’s just better to explain the above clearly and withdrawal hoping to keep my future green card process in a good standing status?!
        – Is it confirmed that I will lose my TPS too depending on the firm resettlement bar in Canada?
        Thank you Jason, I apologies for the long consult!

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        • I do not know about TPS, but firm resettlement generally depends on whether you have an offer, and it sounds like you do. I think if you prefer to stay in the US, you should try to stay here based on employment or even asylum, though I do think you will need to show why you are not firmly resettled in Canada. This may be possible, but the firm resettlement analysis is a bit complicated, and I recommend you talk to a lawyer to help you present the best argument you can to the asylum office. Take care, Jason

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          • Thanks Jason, so appreciated.
            I will keep you posted!

  13. Hey Jason
    Hope you are well, I have a question, I filed my asylum application in Jan 2015 in Arlington Asylum office, In Nov 2016 I moved to Chicago for my new job and my case was moved to Chicago office too. On Affirmative Bulletin, It shows Chicago office has conducted interviews for application filed in February 2015 but I never received a notice or any call from Chicago Asylum office.
    Do you think Chicago office is considering my case filed date November 2016 rather than Jan 2015? I am worried If in worst case scenario they sent me a notice for interview but I have not received it. I do have an appointment with them on next week but just losing my peace of mind on uncertainty what really happened. Please advise

    Reply
    • If you filed the AR-11 and they have your address, you should be fine. You can email them and ask about the status of your case. You can find their contact info if you follow the link at right called Asylum Office Locator. Also, make sure that all documents are submitted, so that the case is ready if they schedule you for an interview. Take care, Jason

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      • Thank you for your help, I checked with Chicago Local Asylum office, they didn’t have my address in their system despite the fact I submitted AR-11 to office where I was supposed so Learned always have to go an extra step and check with local asylum office. long story short after I submitted AR-11 at local asylum office, shortly i received my interview letter after bio metrics were given and on September 19 my application was approved.
        Jason, Just want to thank you for your amazing work, I learnt so much from here and it helped me a lot with my case. I couldn’t afford to hire another attorney in Chicago so I searched on my own and your blog, your advice to those who were looking for help did help me a lot and i am thankful for that. Thank you again

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        • I am glad it helped. Congratulations and welcome to the US of A! Take care, Jason

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  14. Hi
    Jason
    My husband’s father is sick and in the hospital.
    He has a heart condition, we are currently on an asylum application.
    Is it possible for us to apply for an advance parole for him to visit his parents ( same country we have applied for fear of persecution)
    How long does it take for an advance parole approval to be given.
    Will he have problems entering the country back on his return as he has a pending case, our son and myself are dependents on this application.
    Is there a fee we have pay to submit an advance parole
    We are due to get our employment authourisation in November 2017
    It will just be my husband who would want to travel to see his ill father.
    Thank you

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    • Going back to the country will very likely cause the application for asylum to be denied, even if there is a good reason to return. He would need evidence to show why he is returning (father’s medical records) and also evidence about why it is still dangerous in that country and why he needs asylum. Even then, the return trip will be a problem. As for Advance Parole, the form is I-131, available at http://www.uscis.gov, and the instructions explain what you need and the fee. Take care, Jason

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      • Many thanks for replying Jason.
        I have one more question, In case my husband wants to withdraw from the application.
        Will it be possible for me to get myself and my son under a new asylum application?
        My husband will only need to withdraw from the application in case advance parole does not work or if it is disapproved.

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        • Many thanks for helping all of us who are in need of answers.

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        • If he is the principal applicant and he leaves the US, the application will be done, so you will need to apply again on your own. I recommend you email the asylum office before he withdraws to see whether you can somehow substitute for him, so you can keep your place in the queue and protect yourself from the one-year asylum filing deadline. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

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          • Many thanks for your response Jason!

  15. Hi Jason,

    Me and my family just got asylum based Green Cards. My wife and kid were derivative and I was the principal applicant. I filed asylum based on threat from sunni radical terrorist groups and not from home government. Can my wife and son travel to the home country on their home country passports. Or is it better to travel on the Refugee Travel Documents or should the abstain from traveling at all. We are not from the 6 countries. Please advise. Thank-you.

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    • Certainly, it is better not to go to the home country at all. If they do travel, they can re-enter the US with the RTD or with the green card. But if the trip causes the US government to think that your case was false or that you really do not have a fear of returning, it could cause problems for you. If they have a reason to travel (visiting a sick relative, for example), get evidence about that reason (like a doctor’s letter), so that if they are asked about this, they can at least state a reason for going. Take care, Jason

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    • Hi Ali
      Could you email me to manch_p@hotmail.com
      I would like to communicate with you
      Thank you!

      Reply
  16. Hello Jason, God bless you,
    i will come to USA to submit asylum,
    does immigration offices will still receive asylum seeker after Supreme Court decision ?, or this decision not effective to asylum seeker internal USA.
    iam a christian and not from the 6 countries.

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    • If you are not from one of the six countries, the Supreme Court decision should not affect your case, and the decision does not block people from seeking asylum here. Take care, Jason

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  17. Hi dear jason
    After what suprem court desition people with travel docoment from 6 countries they can teavel ?
    Thanks for your concern

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    • That is not yet clear. The US government will have to issue rules for how they will implement the travel ban, and that should happen in a few days (supposedly). Then, we will know how the Supreme Court decision will be implemented. Take care, Jason

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  18. Hello Jason

    Will the Supreme Court rulings affect asylum seekers special for those who are waiting for their first EAD

    Thank you for you work may god bless u

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    • Probably not, but we will have to wait to see how the US government implements the order, which we will probably know in a few days. In any case, if you are not from one of the six countries, it should have no effect. Take care, Jason

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  19. Jason,

    With the ruling of SC today, there’s a possibility of the ban to be reinstated back in October.
    Does this mean asylees (with green cards) from the banned countries should not travel out of the country no more?
    By travel, I mean to a country that’s not COP.

    Thanks, Jason!!

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    • The ban could be re-instated in some form any day now, and I expect it will be. What form that will take, we do not yet know. My guess is that travelers with a GC will be fine, but I would be careful and pay close attention to what is happening before you travel. And of course, apply for US citizenship as soon as possible so you can be done with this nonsense. Take care, Jason

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      • Thank you, Jason!!
        I think the ban is actually working. It might not be legally enforced, but it for sure made people rethink coming/living in the U.S
        My words to people is don’t lose hope. Laws change and the administration will eventually change too!

        Again, thanks Jason for your help!!

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        • I agree with that – I think one of the main purposes of the ban was to deter people from coming, and in that sense, it is working quite well. Take care, Jason

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  20. Hi Jason,

    with the partial reinstatement of the ban, where does this leave people within the US who have filed AOS based on asylum or employment ..etc?
    I am inclined to think that the SC will uphold the entire ban in October and I am almost confident the ban will be extended indefinitely. What’s your advice for those already within the process?

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    • There is not much to do other than continue the process. I have not read the whole case, but it seems to me that it creates a system that is not workable without some interpretation by the Executive Branch, and this will likely be subject to more litigation (in this regard, I agree with J. Thomas’s opinion). There seem to be different schools of thought about whether it will become permanent; some people think Trump will declare victory and let it go. I am more pessimistic than that, but we will see. Take care, Jason

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  21. Hi Jason, thank you and two questions:

    1) since you hoped this case would be published, do you feel okay about telling us what was the unsafe country from which your person fled, and what was the also-unsafe country where her husband was assassinated?

    2) Will you share this case with Ben Winograd so he can include it in IRAC’s index of unpublished BIA decisions?

    muy amable,
    Virginia in Austin

    Reply
    • I don’t, but I will share it with lawyers for their clients if they ask me. Also, Ben already has it (he is that good). Take care, Jason

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  22. Hi jason, What is minimium, average and maximium fees of a lawer in immigration court for a case of Removal Proceeding of an Asylum case? Any idea?

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    • IT is very variable. I normally charge $4000 for a local court case, and that fee is on the low side. Average is probably $5000 to $7000, but fees can be much more. I did a post about this on March 2, 2016 and that might help. Take care, Jason

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  23. Hi jason ..
    thanks for a wonderful blog for helps needy people. God Bless You
    i want to know about simple question. i have connecting flight when i arrived usa. in 589 application a question is ” travel though or reside any other country “.
    actually i missed my flight in UAE by the weather changed and airline gave us one day stay there . so what will i need to click on that question in application.

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    • For that question, I list any connecting flights and state how long you were in that country. Take care, Jason

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  24. Congrats on the great work! The lawyer’s argument that “firm resettlement as a door” is a deviation of the meaning and reasoning of asylum’s concept itself. Firm resettlement is when the asylum seeker is able to permanently lead a safe normal life in a third country where he/she has the same rights of a citizen or permanent resident, and where he/she is able to safely access this country. The U.S asylum law arguments never cease to shock me. This asylum seeker is one of the lucky ones who had great attorneys working on her case 🙂

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    • Thank you – This is why I think the decision is useful, as it makes clear the point you make about intent (which is not so clear just from reading A-C-C- for example). Take care, Jason

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  25. Hi Jason,
    i received NOTICE TO APPEAR from New York Asylum office.They put me in Removal Proceddings and told me to go to immigration judge in New York.Name of judge is not mentioned and not any date to appear.My Questions are:
    1.in how many days i have to appear in the immigration court?
    2.How i know the name of my judge?

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    • They will send you a notice about the court date. But to be safe, you should also call the court hotline at 1-800-898-7180 and enter your Alien number. Push 2 and the system will tell you your next court date (once the date is scheduled). It will also tell you the name of your judge. Take care, Jason

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      • Hi jason, i checked my hearing date on helpline but no date is there.i recieved letter on last Friday.

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        • It often takes a few months before you are scheduled for a court date. I recommend you check the hotline every week or two. Take care, Jason

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  26. Oh Jason that was some case you won there,congrats !!!.How I wish I could change my lawyer to you #sob..

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  27. How were they able to reach the US if they were resettled in another country?

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    • They were in the third country for a while and then came to the US with a visa. Take care, Jason

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  28. Great job, Jason! Congratulations!

    It sounds like DHS was pushing Matter of AGG too far; I think it’s reasonably clear that the main point of Matter of AGG was to make sure that people didn’t just deliberately reject or avoid refuge in safe countries so they could get asylum in America instead, and that made sense. But it would make no sense if, say, Jews fleeing persecution in Russia in 1917 and settling in Germany then couldn’t get asylum if they had to flee from Germany too in 1933. Doesn’t the “door that, once passed through, bars you from asylum forever” idea mandate that result?

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    • Funny, but I think I made a similar argument to the DHS lawyer and the Judge in my case (I have a penchant for Nazi analogies). I agree with you, but they didn’t buy it. Take care, Jason

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  29. Hi Jason, congrats on your win! I agree that they should have published your case. I guess if they did, then people who currently resettled in “safe third countries” would start filing for asylum in the US in droves. It’s rather unfortunate that your client lost her husband. Thank you.

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    • I don’t think the decision helps people in safe third countries, as it only applies to people are in unsafe third countries. I just think they do not like to publish decisions for some reason. Take care, Jason

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  30. Where is the opinion? I’d love to read it. Congrats.

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  31. Hi Jason Sir
    If u read & reply we shall be very thankful to you.

    One my friend’s U Visa case is pending from last 2 yrs 10 months. We read that in U visa cases they have Limit of 10000 cases every year. He is waiting for his interview but don’t have adject information regarding interview. He has kids too He is not able to do the work because he doesn’t have work permit . Can u pls guide us.

    If anyone know about this pls share ur experience.

    Regards

    Reply
    • I do not know much about U visas, and so I cannot assist with this. I do think U visas can be slow, but I recommend he finds a lawyer to help him with this, as it sounds like someone should look into it after so long. Take care, Jason

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  32. I 100% believe the decision should have been published. For public without explicit knowledge of laws, this case decision seems like prime example of common sense. And it’s very sad that she lost her husband. May god give her strength to cope with everything.

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  33. Hi Jason. Thank you for all your helpful posts. I have a question. i filed asylum through the Miami office in March 2014. I relocated to Chicago in January 2015 and even though the website says they are interviewing cases from October 2014, my interview has not been scheduled. Does this mean my case is still in the Miami queue (May/June 2013)?

    Reply
    • If you did not do it, you are supposed to submit an AR-11 form (available at http://www.uscis.gov) to the Miami office to change your address (now-a-days, you can do it online). If you did that, email or contact the Chicago office to ask about the status of your case. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

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    • You should send a copy of change of address form to the chicago office even if you did it online that what they told us. Try to visit the office and they will tell you if they received your case or not. Your turn is very soon, be ready and good luck !

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      • You can also email it. You can find their email address if you follow the link at right called Asylum Office Locator. It is new, but you can now change the address for an asylum case on-line using the AR-11 (though since it is new, I do not fully trust it, but we did it successfully a few times. Take care, Jason

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