Book Review: Asylum–A Memoir & Manifesto by Edafe Okporo

Growing up gay in Nigeria was dangerous, both physically and psychologically. Despite the obstacles, Edafe Okporo managed to build a life for himself, get an education, and find a job where he helped gay men access healthcare. During his years in Nigeria, Mr. Okporo watched as conditions worsened for members of the LGBT community. The country enacted anti-LGBT legislation, which criminalized homosexuality and encouraged community members to report sexual minorities to the police. In 2016, a mob attacked Mr. Okporo in his home and beat him into unconsciousness, chanting “Gay! Gay! Gay!” The last straw came later that same year when–ironically–Mr. Okporo received recognition for his activism by a U.S.-based NGO. The NGO posted an article about Mr. Okporo online, essentially “outing” him to anyone with an internet connection. He immediately fled his home and fled his country.

In his new book, Asylum–A Memoir & Manifesto, Mr. Okporo recounts his tale of persecution, his escape to America, and his experience with the U.S. asylum system. (more…)

Disorder at the Border

The Biden Administration has proposed new regulations that restrict who is eligible to claim asylum at the U.S.-Mexico border. The new rules anticipate the end of Title 42, a public-health program that limited the number of people who could seek protection at the border. Advocates have condemned the new measure, labeling it a “transit ban” that is unworkable and a violation of U.S. asylum law. Whether the policy is illegal, I am not sure, but it certainly seems unworkable in the sense that it will likely not deter many asylum seekers from coming to the border to ask for protection.

Here, I want to talk about the new rule, and what impact it might have on asylum seekers at the border and in the interior. (more…)

Afghan Asylum Absurdity

I wrote last time about recent updates from the Asylum Division. Here, I want to focus on one element of those updates: How the Asylum Offices are dealing with asylum applications from Afghan evacuees.

Since Afghanistan fell to the Taliban in August 2021, about 88,000 Afghans have been evacuated by the U.S. government and brought to our country. These are generally people who cooperated or worked with the United States or the prior Afghan government, plus their immediate family members. These Afghans would be at risk of harm or death in their country due to their affiliation with the United States or the prior government of Afghanistan.

Ideally, we would have brought these people here and given them permanent status, so they could feel stable and safe, and so they could start rebuilding their lives. Unfortunately, that is not what happened. A bill to regularize the status of Afghan evacuees–the Afghan Adjustment Act–has stalled in Congress, and so the evacuees are left in limbo, not knowing whether they can stay or whether they will have to leave. As a result, many evacuees have no other option but to seek asylum. This situation is absurd and insulting, and–adding injury to insult–the Asylum Offices are mishandling the Afghan’s applications. (more…)

Preemptive Asylum for Ukrainians

Vladimir Putin has had a gun to the head of Ukraine for years. The most recent troubles began in 2014, when a pro-Russian president of Ukraine fled to Russia, rather than submit to an impeachment vote (he was impeached anyway). Several regions of Ukraine declared loyalty to the former president, and fighting broke out. Ultimately, parts of Ukraine came under Kremlin control, including the Crimean peninsula, which Russia annexed after an “election” by that region’s residents. Since then, fighting and allegations between the two nations have waxed and waned, but the Russians did not move towards a major escalation–until recently.

The current buildup began last fall, and there are now more than 100,000 Russian soldiers and Ukrainian separatists deployed for war. Analyst have suggested that a large-scale invasion is likely in the coming days or weeks. What does this mean for Ukrainian citizens in the United States who face possible persecution if Russia takes over or installs a pro-Russian puppet? Can such people file for asylum now, even though a Russian invasion is still speculative? (more…)

Circularity in Particular Social Group Decisions

This post is by Jim Feroli, an attorney with Immigration Legal Services (ILS) of Catholic Charities, Washington, DC. He has worked with ILS since 2014 and helps to manage the pro bono program. He focuses on asylum, U Visa and VAWA cases, and removal defense generally. He has also represented immigration clients before the Board of Immigration Appeals and U.S. Courts of Appeals.

I’m a movie fan. If you haven’t seen it, I recommend the film Gladiator. Russell Crowe stars as Maximus, a Roman general who is betrayed, sold into slavery, and forced to fight in gladiator matches. The movie has some good action scenes and strong acting by Crowe and Joaquin Phoenix, who plays the demented and cruel heir to the throne. It’s about persistence, redemption, and the human spirit and is worth a watch on Netflix.

As an immigration lawyer, I wondered would Maximus, as a slave in ancient Rome, qualify for membership in a particular social group? I’m sure most people watching the film had the same concern. My answer is yes. Maximus’s status is immutable. Slavery in this context is both a status and a condition. As much as Maximus may want to change his status, it is beyond his control. By chance he could be emancipated, but more likely, he will die a slave. Being a member of the group of slaves is also particular. It is distinct and the borders of the group are clear. There is a strong contrast between persons who are slaves—and thus private property—and those who are not. Generally, people should understand if they fit within the group of slaves or free persons, in this case Roman citizens. Lastly, the group is socially distinct. Legally and economically, society recognizes slaves as different. They are deprived the rights to participate in civic life and may be bought and sold by others. Certainly, a runaway slave should qualify for refugee status and not be returned to face additional persecution. (more…)

Reflections and Advice from a Recently-Retired Asylum Officer

This article is by Allen Schwartz, a former Asylum Officer who now offers consulting services to asylum seekers and attorneys. He may be reached at allen.schwartz@visaconsults.com or (305) 528-6474. Learn more about him at his website, www.visaconsults.com.

After a 23-year career as an Asylum Officer with INS/USCIS, I decided to retire in late 2019 and pursue my lifelong passions, such as travel and exploring this incredible world with its wide variety of people, cultures, and languages. I also planned on utilizing my extensive background in immigration, particularly asylum and refugee work, as a consultant. Little did I know or could have predicted that a few months after my retirement, the COVID-19 pandemic struck the world in unimaginable ways and turned “normal life” upside down. As a result of the pandemic, international borders were closed, embassies and consulates were shut down, travel was severely restricted, and immigration to the United States came to an almost virtual standstill.

COVID-19 has also dramatically reduced the number of affirmative asylum cases being scheduled and interviewed at our Asylum Offices here in the United States and the affirmative asylum backlog has continued to grow exponentially. Only recently have we seen that in-person asylum interviews are being scheduled again, albeit at a significantly reduced number.

Before COVID-19, each Asylum Officer was required to interview eight cases per week, a very daunting task. Currently, the number of interviews have been cut at least in half in most offices, since the Asylum Officer, the attorney/representative, and the applicant must be in separate rooms. A recent policy change requires that interpretation must be provided by a telephonic government-contracted translator during the interview. Prior to COVID-19, applicants were required to bring their own interpreter for the interview. The future for an accelerated and expansive interview schedule for affirmative asylum cases remains to be seen. While we wait, I have prepared a six-point “best advice” list for your review– (more…)

Back to Bad

Last week, Attorney General Merrick Garland issued two decisions reversing Trump-era cases that limited asylum eligibility. Here, we’ll discuss those cases and how the AG’s decision will affect asylum seekers.

The first case, Matter of A-B-, 28 I&N 307 (AG 2021), involves asylum for victims of domestic violence. There is a long history here, but the basic story is that victims of domestic violence have traditionally had a hard time qualifying for asylum. Through a series of cases between 2004 and 2014, the government created a (convoluted) path for victims of DV to receive asylum by classifying them as a “particular social group” (to qualify for asylum, an applicant must show that the feared harm is “on account of” race, religion, nationality, political opinion or particular social group). While this was an important step for DV asylum seekers, presenting a successful case was still very difficult, especially for people without a lawyer (probably the majority of applicants). The Trump Administration re-visited DV asylum starting in 2018, and essentially erased the gains made during the prior decade and a half. Now, the pendulum has swung once again, and the Biden Administration has reversed the Trump-era reversal. In other words, we are back to the not-so-great place where we were in 2017. This means that victims of domestic violence can once again obtain asylum, assuming they can satisfy the narrow definition created prior to President Trump. (more…)

Join Me for an Online Conference about the U.S. Asylum Crisis and What You Can Do About It

The Torture Abolition and Survivors Support Coalition (TASSC) International will hold its annual conference and advocacy days from June 23 to 26, 2021. The theme of this year’s conference is “The Asylum Crisis in the USA.” This is a great opportunity to learn about the challenges facing the U.S. asylum system–and to do something about it. All events (including advocacy) will be held online and are free. In support of the conference and its goals, from today until June 30, all proceeds from my new book, The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity, will go to TASSC International!

TASSC is an amazing organization consisting of torture survivors and asylum seekers who help and support each other. Speakers at the event will include torture survivors, advocates, mental health professionals, and lawyers (including yours truly–on June 23rd at 11:30 AM).

The first day of the conference features a number of important topics, including a discussion about the asylum system’s failures and challenges, survivor resilience, and advocating for a humane asylum system. There will also be a training for people participating in the advocacy days (on June 24 and 25). (more…)

Fixing Asylum Part 2: USCIS Forms

Here’s a point that should be self-evidence, but isn’t: Bureaucracy exists to facilitate the implementation of the law. Congress passes a law, and then government agencies create a system of policies and procedures to put that law into effect. In principle, this system should be easy to use and efficient, and should allow people to obtain the benefits to which they are entitled. In other words, it should be the exact opposite of what we have with the USCIS.

There are many problems with the agency that adjudicates immigration benefits (including asylum), but here, I want to focus on one particular area of concern: USCIS forms. USCIS forms are poorly designed, confusing, inconsistent, culturally insensitive, and inefficient. Here, we’ll discuss these problems in a bit more detail, and I will make some suggestions for improvement.

Let’s start with the most basic question on every USCIS form–the applicant’s name. Almost every form has boxes for an applicant’s first, middle, and last name. The problem is that naming convention vary widely, depending on where you are from. Many cultures do not have a first-middle-last name format, and so the USCIS question does not make much sense. One solution might be to ask the question in a more specific way: “Write your name as it appears on your passport.” Of course, not everyone has a passport, so maybe a second question can ask: “Write your name as it appears on your birth certificate or other government-issued identity document.” In addition to these iterations, the name question would also need to ask about “all other names used” (as many USCIS forms currently do). The confusion surrounding this very basic question–What is your name?–illustrates the difficultly of creating one-size-fits-all forms.

Form a forum for reforming forms.

Another problem arises with regard to addresses and places of employment. One issue here is that address formats vary widely by country, and the forms generally only allow for addresses in the format that we use in the United States. Another issue is that different forms request address and employment histories in different ways. So for example, the I-589 form (application for asylum) allows you to list one address or one job per line, so that your address and job histories fit onto one page (with room to spare). The I-485 (application for permanent residency), by contrast, requires this information in a different format, so that less information takes up much more space. The N-400 (application for citizenship) requests the same information in a third format. Maybe this is a minor quibble, but the inconsistencies between the various forms is confusing, and it is not confined only to the applicant’s address and work histories.

One area where inter-form differences sometimes create problems is the issue of arrest history. Different forms ask about this in different ways. Sometimes, USCIS wants information about all arrests. Other times, they want only information about criminal arrests or convictions. In some questions, USCIS wants to know about arrests anywhere in the world; other times, they want only arrests that occurred in the United States. Indeed, if you look at the main forms a successful asylum applicant will complete over the course of their time with USCIS, there are probably dozens of questions about criminal activity, and those questions are inconsistent between forms, and–in many cases–confusing, even for someone trained in the law.

Speaking of confusing questions, if you look at the lists of questions on the I-485 and the N-400, you will see scores of yes/no questions about all sorts of activities. Some of these questions are not amenable to a yes-or-no answer. Others (many others) are poorly written and difficult to understand. In many cases, the two forms ask similar questions using different language. All this can easily trip up an applicant and can lead to unintentional inconsistencies where there really are none.

Another problem is the large number of yes-or-no questions on many forms (the I-485, for example, has over 100 yes/no questions). These questions relate to everything from criminal and immigration violations, to national security, to persecution of others, to membership in totalitarian political parties, to prostitution and illegal gambling. Most people check almost all the boxes “no,” but periodically, they may need to check “yes.” Given the vast number of questions, the fact that almost all are “no,” and the fact that many of the questions are confusing, it is easy to slip up and miss a “yes” answer. This can lead to big trouble, including having your application denied.

These examples represent just a few of the problems with USCIS forms, and every immigration lawyer can cite many more. The short answer is that all USCIS forms need a major overhaul. This should be done with an eye towards making the forms shorter (the I-485 and the N-400 are each 20 pages long). The forms should be made consistent with each other in terms of format and the substance of questions asked. They should accommodate different naming and address conventions.

Also, USCIS needs to do something about the overwhelming number of yes/no questions. There are too many questions, many are difficult to understand or redundant (or both), and many are irrelevant (do we really need three questions about Nazi activity between 1933 and 1945?). The number of questions should be reduced and the questions themselves should be simplified so that you don’t need a law degree to understand what the heck USCIS is asking about.

One final point on forms: Why are we still printing forms and mailing paper copies to the agency (to a plethora of different mailing addresses)? A limited number of forms can be filed online, and USCIS should expand e-filing, so that all forms and evidence can be filed online. E-filing would also solve the problem of USCIS rejecting forms for simple mistakes or for not writing “N/A” in every empty box. 

To reform its forms, USCIS needs help. It needs to hear from immigration advocates, immigrants, and other stakeholders. Forms should be more understandable and more able to accommodate cultural differences. Questions should be standardized across different forms, and the format of the forms should be made more consistent. All forms should be available for online filing. 

Improving USCIS forms is long overdue. Fixing the forms will make USCIS more efficient, and will ultimately save everyone time, trouble, and money. The purpose of USCIS forms is to facilitate the application process and to help USCIS determine who is–and is not–eligible for an immigration benefit. More efficient forms will help move USCIS towards these goals.

Attention Asylum Seekers! File Your Case Before January 11, 2021

This post is by Lindsay M. Harris, asylum attorney extraordinaire–

Over the summer, the U.S. government proposed a set of regulations that will dramatically change asylum law. In response, the general public and immigrant advocates submitted close to 90,000 public comments. After receiving the comments, the government changed some of the proposed rules (slightly), but the new rules are set to go into effect on January 11, 2021.

There will likely be legal challenges (lawsuits) to try to stop these regulations from going into effect. But, it’s always hard to tell what will happen. For that reason, if you plan to file for asylum, it is best to do so before January 11, when the new rules go into effect.

President Trump’s parting gift to the asylum system.

One of the changes made between July 15, 2020 (the proposed rule) and December 2020 (the final rule) is that the new rules will not be retroactive. This means that they will not apply to anyone who has filed their I-589 application for asylum before January 11, 2021. The government has stated that the new rules will apply now, despite any legal challenges to any sections that the government views as simply codifying existing case law–

Although the rulemaking itself is not retroactive, nothing in the rule precludes adjudicators from applying existing authority codified by the rule to pending cases, independent of the prospective application of the rule. Accordingly, the statutory authority and case law incorporated into the rule, as reflected in both the [notice of proposed rulemaking] and the final rule, would continue to apply if the rule itself does not go into effect as scheduled.

Regardless of retroactivity issues, it is likely much better for asylum seekers to have their applications filed prior to January 11, 2021. This is especially true for people fleeing harm from non-government actors, for asylum seekers fleeing gender-based harm, and for individuals who have spent time in another country before coming to the United States.

If you are seeking asylum, please consult with an immigration attorney as soon as possible. An I-589 asylum application takes hours to properly fill out, and you will need to have time to work with an attorney to prepare your application and get it mailed before January 11, 2021.

If you are an asylum seeker in need of assistance, please contact Lindsay.Harris@udc.edu, Vice-Chair of the American Immigration Lawyers Association’s National Asylum & Refugee Committee and Associate Professor and Director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.

Fixing Asylum Part 1: Politics

The President and his allies are doing everything in their power to subvert the result of last month’s election. So far, their efforts have not changed the outcome, but we are still in a very dangerous place. Hopefully, the system and our country will withstand this unprecedented assault on democracy and the rule of law. If so, and if Joe Biden assumes office in January, he will face a number of daunting challenges: The pandemic and healthcare, the economy, climate change, divisiveness and decaying faith in democracy, racial justice, and immigration reform, to name the most obvious. How much attention immigration–and specifically asylum–will receive in this mix remains to be seen.

Prior to the election, the Democratic Party and the Biden campaign set forth their proposals for immigration reform, which are quite sweeping. Many of Mr. Biden’s ideas can only be enacted with the cooperation of Congress. Others could be put into effect without Congressional action, just as President Trump implemented his immigration agenda through agency rulemaking and executive orders.

A minority of the immigration policy changes proposed by Mr. Biden relate specifically to asylum, and most of these concern asylum seekers at the Southern border. This is not surprising, as the border is a disaster, but my concern is that applicants at the Asylum Office and in Immigration Court–which together represent close to two million people–will be overlooked.

Kudos for Biden; Coup Don’ts for Trump.

In this series of posts, I hope to set forth my ideas for reforming and improving our nation’s asylum system.

Before we discuss substance, however, I want to talk politics, since any reform will take place in the context of the current political crisis where, even in the best case, millions of Americans will view Mr. Biden’s Administration as illegitimate and where many Republican leaders will be vying to outdo each other in obstructing the new President’s agenda. The divisive political climate will potentially limit Mr. Biden’s ability to make changes, and in turn, any changes he manages to implement could lead to further division. This begs the question: Should the new Administration follow the Trump game plan, and do all within its power to achieve its goals? Or is it better to focus on areas of bipartisan agreement (if any can be found)?

I’m of two minds about this dilemma. On the one hand, non-citizens in our country have been treated unfairly and cruelly. They have been lied about (and to), terrorized, exploited, and in many cases, forced to wait for years for status to which they are legally entitled. Also, when President Obama tried to take a middle road on immigration (remember when he was referred to as the “Deporter-in-Chief”?), it did nothing to move the other side towards compromise. Perhaps that’s because there is a stark partisan divide over illegal immigration: Only 23% of Democrats view it as a “big problem,” while 67% of Republicans see it that way. So if compromise is impossible, maybe the Biden Administration’s better approach is to implement whatever reforms it can manage regardless of the political consequences.

On the other hand, what is most needed now is to try to heal the divisions in our nation. Pushing through partisan immigration reforms (legislatively or administratively) will likely exacerbate the divide. Further, if President Biden overplays his hand on immigration, it could result in a backlash that advantages Republicans and other immigration restrictionists. Of course, the same predicament exists for other issues–like climate change–and the idea of waiting for a broader consensus when action is needed imminently makes little sense. Immigrants and asylum seekers urgently need relief and protection. So while ideally I believe it would be best to reach out to moderate Republicans and to continue working to educate the public about immigration, I also believe that we need to start enacting changes immediately.

That said, I think the Biden Administration needs to move with caution. Some immigration issues–such as DACA and (surprisingly) refugee resettlement–have broader bipartisan support than others, such as border security and deporting people who are here illegally. Certainly, the new Administration can focus on areas where it will encounter less resistance and face fewer negative repercussions.

The proposals I will make in this series fall, I think, on the more bipartisan side of the spectrum. I plan to discuss ideas for improving efficiency and fairness at the Asylum Office, the Immigration Court, and at USCIS.

In contrast to Mr. Biden’s pre-election policy agenda, my focus in this series will not be the Southern border. Protecting asylum seekers at the border is a more divisive issue than most other areas of immigration law, and I believe that advocates and policy-makers need to lay a political foundation before enacting successful change there. I’ve written about this in more detail before, but unless we build a more bipartisan consensus about who is eligible for asylum, we risk a severe backlash by easing restrictions at the Southern border. Indeed, one could argue that President Trump was elected largely as a reaction against perceived porous borders.

While the politics of border reform is a crucial concern, the situation along the U.S.-Mexico border is clearly untenable–people are dying and something needs to be done. How the Biden Administration will navigate that political minefield, I do not know, but I worry that the political capital required for improving conditions at the border will make it more difficult to enact needed changes in other, less politically-charged regions of the immigration system, such as USCIS, the Asylum Office, and the Immigration Court. In any event, those three areas will be the subject of the next several posts on this blog.

President Trump’s (hoped for) departure will open up some space to improve the situation for non-citizens: By reversing many of his Administration’s damaging immigration policies, but also–hopefully–by bringing long-needed improvements to the immigration system. The trick will be to balance that change with the current political realities, to minimize the inevitable counter-reaction, and to avoid doing further damage to the cohesion of our nation. 

New Bars to Asylum for Criminals and Almost Criminals

In the ongoing saga of the Trump Administration’s efforts to dismantle our humanitarian immigration law, the Departments of Justice and Homeland Security published a new rule imposing mandatory bars that prevent “convicted felons, drunk drivers, gang members, and other criminal aliens from receiving asylum.” The Trump Administration has not changed the law related to asylum–that would take an act of Congress signed by the President–and even when they controlled the Senate and the House in 2017 and 2018, Republicans did not attempt to modify the law. Instead, the Administration has been attacking asylum through regulatory and bureaucratic changes, many of which have been challenged in court.

This latest change is designed to block certain convicted and suspected criminals from receiving asylum. What’s wrong with that? Why should we grant refuge to criminals? I must admit that in the abstract, I don’t have a great deal of sympathy for asylum seekers with criminal records. They are asking for an immigration benefit after having violated our country’s law. However, when you actually meet non-citizens with criminal records and understand their circumstances, it is often more difficult to hold this view. Nevertheless, I suppose this new rule will be less controversial than others implemented by the Trump Administration, since it targets (supposed) criminals.

Before President Trump saved us, we were being overrun by criminals.

That said, there are a number of reasons why this new rule is bad. First, the Immigration and Nationality Act already bars asylum for many people with criminal convictions (and some who have been accused but not convicted). Those who are not barred under the old rules can still be denied asylum as a matter of discretion on a case-by-case basis, and few people with anything resembling a serious criminal conviction get asylum. So as usual with the Trump Administration’s rule making, this new regulation is a solution in search of a problem.

Second, some asylum seekers will be barred for committing a domestic violence offense even without a conviction. For cases in family court, it is sometimes necessary to admit guilt and enter a rehabilitation program in order to (for example) regain custody of your children. I worked on such cases early in my career, and I observed that people who adamantly claimed innocence would be forced to admit guilt if they wanted to reunite with their family. This is of particular concern for low income individuals, who are more likely to face government intervention in their lives. And so relaxing the rules about convictions will probably result in innocent people being barred from asylum.

Third, and on a related note, this new rule will have unintended “up stream” consequences for non-citizens in criminal or domestic court. They will now have a stronger incentive to fight their case and try to avoid any adjudication of guilt. This could result in people with minor issues (such as a second DUI or a minor domestic violence incident) failing to get the help they need, since obtaining assistance requires an admission of culpability. Thus, it will be more difficult to reach a good outcome in cases that would normally be amenable to positive government intervention.

Fourth, some of the criminal conduct targeted by the new rule is very minor–for example, the misdemeanor use of a false ID. Some asylum seekers use fake documents to flee persecution and enter the U.S. Others use fake IDs to work (and eat). Blocking such people from asylum is an unfairly harsh consequence for a relatively small infraction.

Finally, the new rule bars certain people from asylum if they are convicted of illegally re-entering the U.S. or for alien smuggling (and alien smuggling can be interpreted very broadly–for example, a person who enters the U.S. illegally and who helps a non-relative enter at the same time could be convicted of alien smuggling). Thus, the rule potentially prevents people from seeking asylum for fleeing persecution and coming to the United States.

Let’s turn to the new rule itself. One important point is that this rule is not retroactive. Meaning that if you have an old conviction, it does not bar you from asylum. However, if you are convicted after the rule goes into effect–November 20, 2020, unless blocked by a court–then you would be barred. So if you are arrested for a crime prior to November 20, 2020, but convicted on or after that date, you are barred from asylum. The new bars apply to aliens who are convicted of–

(1) A felony under federal or state law;

(2) An offense under 8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2) (Alien Smuggling or Harboring);

(3) An offense under 8 U.S.C. § 1326 (Illegal Reentry);

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant if the impaired driving caused serious injury or death, or if the offense was a second or subsequent DUI offense;

(6) A federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and

(7) Certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

The new rule also makes it more difficult to modify or overturn a prior conviction in order to mitigate the immigration consequences of a crime. The rule specifically indicates that convictions altered for immigration purposes do not allow the applicant to avoid any bars to asylum. It has never been easy to reopen a criminal case and change a conviction, but some non-citizens have successfully used that approach to avoid the immigration consequences of their crimes. Under the new rule, that practice–already quite limited–will become nearly impossible. 

The point to take from all this is pretty simple: If you are an asylum seeker, do not commit any crimes. The repercussions for even a small infraction can be severe. If you are arrested and charged with a crime (no matter how minor), or if you have a case in domestic or family court, you need to speak with a lawyer who is familiar with the immigration consequences of the charges against you. 

To me, this new rule is redundant and unnecessary. Asylum seekers are often people who have had traumatic experiences, and sometimes those experience manifest in conduct that gets them into trouble. The old rule–which blocked most criminals but allowed for case-by-case adjudication in certain instances–was more fair, and enabled the fact-finder to consider all the relevant circumstances in an asylum applicant’s case. But when it comes to asylum seekers, the Trump Administration is not interested in fairness. Perhaps the courts will see fit to block this new rule, but to me, that seems doubtful. The vast majority of asylum seekers do not commit crimes, and under this new rule, it is imperative for anyone who needs asylum to keep it that way. 

Let’s Deny Asylum to Sick People!

Horace Walpole famously observed that the world is a comedy to those who think, and a tragedy to those who feel. That about sums up my view of the Trump Administration’s immigration policies: They are so ludicrous and so removed from reality that they would be funny if it weren’t for the fact that people are dying. The most recent proposed regulation neatly fits into this dichotomy; it is as absurd as it is harmful.

Using the pandemic as an excuse, the Administration proposes expanding an existing bar–applicable to aliens deemed a “danger to the security of the United States”–to deny asylum to “aliens who potentially risk bringing in deadly infectious disease to, or facilitating its spread within, the United States.” As usual, the main targets of this latest policy are aliens seeking asylum at the Southern border, but other applicants might be effected as well. Also, unlike some of the prior bans, this one specifically targets non-citizens seeking protection under the United Nations Convention Against Torture

Let’s start with the law. Under the Immigration and Nationality Act (“INA”), there are several “bars” to obtaining asylum. These bars prohibit granting asylum to aliens who (1) “ordered, incited, assisted, or otherwise participated” in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States”; (4) are a “danger to the security of the United States”; (5) are involved in terrorist-related activities; or (6) were “firmly resettled in another country prior to arriving in the United States.”

Gesundheit! That’s German for “Asylum Denied.”

Do you notice anything about these different bars? Except for number 6, they all involve people doing bad things. While “danger to the security of the United States” could theoretically be interpreted to include sick people, when considered in relation to the other bars, that interpretation doesn’t make a lot of sense. Indeed, there is a principle of statutory construction called ejusdem generis, which basically says that when you have a list that contains a vague term, you should interpret that term consistent with other items on the list. The BIA famously invoked ejusdem generis (and called it a “well-established doctrine”) in Matter of Acosta, when it interpreted the meaning of particular social group. So it seems more than a small stretch for the Trump Administration to define “danger to the security of the United States” in such broad terms, and we can hold out some hope that this provision will be struck down because it violates the INA (and, by the way, the proposed regulation invokes similar logic to try to block people from obtaining Withholding of Removal). 

Assuming the new rule goes into effect, what constitutes a danger to security? According to the proposed regulation, “In determining whether there are reasonable grounds for regarding an alien or a class of aliens as a danger to the security of the United States… the Secretary of Homeland Security may consider whether the alien exhibits symptoms consistent with being afflicted with any contagious or infectious disease or has come into contact with such disease, or whether the alien or class of aliens is coming from a country, or a political subdivision or region of that country, or has embarked at a place, where such disease is prevalent or epidemic.” So if an alien seems sick, or if she traveled through an area that the U.S. government believes contains an epidemic, she will be barred from asylum. Worse, this regulation gives the government the power to bar a “class of aliens” from asylum. Presumably, that would be aliens from a particular country, or who passed through a particular area.

While this rule applies to all asylum seekers, I suspect that if it is implemented, it will mostly affect those who arrive at the border (or an airport) and request protection. Such aliens undergo a credible fear interview (an initial evaluation of asylum eligibility). If the alien “passes” the credible fear interview, he can present his claim to an Immigration Judge, who then grants asylum, some other relief, or orders the person deported. Up until now, the asylum bars did not apply to credible fear interviews. However, under the proposed regulation, an alien subject to a bar would “fail” the credible fear interview and likely be deported. This means that if an alien comes from, or passes through, an area where an epidemic is prevalent, or if she appears sick, her request for protection in the U.S. will be automatically rejected. 

Let’s think about this for a moment. Under this new rule, if a person was imprisoned, beaten and raped due to her political opinion, and then she escapes her country, she will be denied protection in the United States and sent home simply because she traveled through an area that is experiencing an epidemic. Even if she herself is not sick! How nice.

One last element of this proposed regulation that I want to discuss is the rule related to Convention Against Torture (“CAT”) relief. Under the CAT, the U.S. cannot return a person to a country where he will be tortured. There are essentially no exceptions to this rule. But the proposed regulation seeks to change this–

If the alien makes this showing [that he is more likely than not to suffer torture in the home country], then DHS can choose in its discretion to place the alien in [Immigration Court] proceedings… or return the alien to a third country under appropriate standards.

In other words, when the alien arrives at the border to request protection, she must show that it is “more likely than not” that she will be tortured in the home country. This is a very high standard of proof for someone just arriving in the U.S. who likely does not understand the asylum system or have access to a legal counsel. Further, even if the alien somehow manages to demonstrate that she will be tortured in the home country, DHS can simply choose to send her to a third country (and this can happen–the Trump Administration has bullied or convinced Guatemala to accept some asylum seekers). Basically, we get to wash our hand of our responsibility to protect torture survivors.    

The only saving grace here is that this regulation is so poorly thought out that it is susceptible to a court challenge. Also, it seems to me that there is a much easier way to determine whether an asylum seeker is a “danger to the security of the United States” due to disease: Give him a test for that disease. If he is negative, there is no reason to bar him from asylum. If he is positive, maybe–I don’t know, this may sound crazy–help him get better. Treating human beings humanely. Sadly, it’s a novel concept in Trump’s America.

Asylum Seekers Have Power! Here’s How You Can Help Save Asylum

As you probably know, the Trump Administration recently proposed regulations to make it much more difficult to obtain asylum in the United States. That’s the bad news. The good news is that there is something you can do to try to reduce the damage: Submit a comment opposing the regulation. Submitting a comment is easy, free, and safe, even for people with no lawful status in the U.S. You can do it from the comfort of your own home. Right now. And best of all, it really can help. Here, we’ll talk about how to submit an effective comment.

Before we get to that, let’s talk a bit about the proposed regulation, which you can see here. The purpose of this regulation (and every regulation) is to interpret the law, as created by Congress. Regulations are created by government agencies (in our case, by the Department of Justice, Executive Office for Immigration Review) because agencies have specialized knowledge about how to implement (or in our case, subvert) the law. The regulations cannot violate the law or they will be invalidated by courts. Also, regulations cannot be “arbitrary and capricious,” meaning the agency must provide a rational reason for the regulation. While there is a lot of bad stuff in the proposed regulation, I wanted to focus here on the points that people might be most interested to comment about–

  • The definition of “particular social group” is narrowed, so that it is more difficult to get asylum if you fear harm from gang members or criminals, or based on domestic violence or an interpersonal dispute
  • The definition of “political opinion” is narrowed to exclude people who have a generalized opposition to criminals or terrorists
  • The level of harm required to demonstrate “persecution” is increased, and so asylum applicants will need to show a “severe level of harm”
  • The categories of people eligible for asylum are reduced, and people who fear persecution on account of “gender” are excluded from asylum
  • The new rule encourages decision-makers to deny otherwise-eligible applicants based on “discretion” and lists several “significant adverse discretionary factors,” including–
    • unlawful entry into the U.S. or use of fraudulent documents
    • the failure to seek protection in any third country the alien “transited” through, unless that country denied protection to the alien, the alien was a victim of human trafficking or the country was not a party to the Refugee Convention of 1951, the Protocol of 1967 or the United Nations Convention Against Torture
    • remained unlawfully in the U.S. for more than one year before seeking asylum
    • failed to file or pay taxes, if required
    • failed to report income to the IRS (i.e., worked without authorization and did not pay tax – this one will be a particular problem if the plan to delay and deny work permits for asylum seekers goes into effect)
  • Otherwise-eligible applicants will be denied asylum as a matter of discretion where they spent more than 14 days in a third country before coming to the U.S. or where they transited through more than one third country before coming to the U.S. (there are some exceptions to this rule, similar to those listed for the prior bullet point about “transit” through a third country)
  • Applicants will be denied asylum where they “either resided or could have resided in any permanent legal immigration status or any non-permanent, potentially indefinitely renewable legal immigration status… in a country through which the alien transited prior to arriving in or entering the United States, regardless of whether the alien applied for or was offered such status”
  • Torture Convention relief is not available where the torturer is a “rogue” official
  • Finally, it is not clear, but as the regulations are written, they could be applied to people who already have asylum cases pending. Obviously, this would be unfair, as it would punish applicants for choices they made years ago (if the rules are applied retroactively, they might very well be blocked by a legal challenge)
Other significant adverse discretionary factors include filing for asylum, fearing persecution, and not being an American citizen.

If there are things here you don’t like, you can comment about them. How to do that?

First, go to this web page, where the proposed regulations are posted. If you look in the upper right part of the page, you will see a dark blue box that says “Comment Now!” Click on that, and you will be taken to a page where you can type your comment. If you want to be fancy, you can even attach files to your comment. You also have to type a name. You can type your own name, but you can also write “anonymous.” The name you type will be included when the comment is posted publicly. There is an option to include your contact information, but this information will not be displayed publicly. Once you are done, check the box indicating that you “read and understand” your statement and hit “Submit Comment.” That’s it. Easy peasy.

While you are on the regulation web page, you can look to see what other people wrote (on the right side of the page). When I last checked, there were more than 1,300 comments.

What should you say?

It is best to write an individualized statement, rather than use a pre-made template. If you are an asylum applicant, maybe think about any parts of the new regulation that might harm you and explain how you will be harmed. You might also write about why you chose to seek asylum in the U.S. (if, indeed, you had a choice) and what is your impression of the U.S. asylum system. Remember, as an asylum applicant, you have something important to say and your voice should be part of this conversation. One important point: All comments must be submitted prior to 11:59 PM Eastern time on July 15, 2020. Also, if you post a comment, and you don’t mind, please copy and paste what you write into the comments section of this blog (below).

If you’d like some additional advice about what to write, check out these postings by Tahirih Justice Center and the American Immigration Lawyers Association (AILA), or just read the comments already posted on the regulation. The federal government also provides general, but helpful, advice about writing a comment.

Finally, you might ask, Does posting a comment matter?

Apparently, it does. According to AILA, “The administration will review and address those comments before the rule becomes finalized, so it is critical for us to submit as many unique comments as possible.” More comments = a longer review process. This will buy more time before these draconian new rules are implemented. Also, the “government gives more weight to each comment if it is unique from others,” and so it is important to personalize your submission.

Since its inception, the Trump Administration has been waging war against the rule of law in our country. Immigrants and asylum seekers have always been the first target in this war, but they are far from the only target. In this particular battle, asylum seekers have a crucial role to play, and so I hope you will consider making a comment in opposition to the proposed regulations. Together, we can protect our asylum system and our country.