It’s Autumn, which means that it’s time again for the Diversity Visa Lottery. The Lottery was created by Congress to increase immigration from countries that have traditionally sent us few immigrants. Every year, 50,000 people “win” the lottery and are then (probably) able to immigrate to the U.S.

The only problem with winning the DV Lottery is that it's hard to fit the green card in your wallet.

The only problem with winning the DV Lottery is that it’s hard to fit the green card in your wallet.

Given the current state of affairs in the asylum world (delay, delay, delay), some people with asylum cases pending are wondering whether they can use the Lottery as an alternative to asylum. The answer: It depends.

First, not all countries are eligible for the Lottery. Countries that have sent us large numbers of immigrants in the past are not included in the Lottery. If you are from one of the following countries, you are not eligible for the DV Lottery:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

For China, please note that persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Even if you were born in one of the above-listed countries, you might be eligible for the Lottery if your spouse’s country does not appear on the list, if your parents were not born in one of the countries on the list, or if your parents were not lawful residents of a listed country at the time you were born. You can lean more about these somewhat annoying requirements here.

Besides country-of-origin restrictions, the other requirement for eligibility is that applicants must have a high-school degree or the equivalent, or have “two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.”

If you meet these two requirements, you can apply for the DV Lottery. This is free and actually pretty easy. Video instructions are here and you can apply here. You must apply before November 3, 2015. Winners are selected starting in May 2016.

There are also a number (probably a large number) of websites that will “help” you apply for the Lottery, for a fee. In the best case, this is a waste of money (it is just as easy to apply yourself). In the worst case, it is a complete fraud. You can learn more about these fraudsters and report scams to the U.S. government here.

Unlike most applications, I recommend that people do not use a lawyer for the Lottery and do not use a service. It is best to do it yourself.

However, if you win the Lottery, it is very wise to hire a lawyer to guide you through the green card process. Winning the Lottery does not guarantee that you will get a green card, and whether you can successfully take advantage of winning the Lottery depends on many factors and can be complicated–especially for people with asylum cases pending.

So let’s say you have an asylum case pending, should  you try the Lottery? The easy answer here is “yes,” there is no harm in trying the Lottery. If you happen to win, then things get complicated (the odds of winning are hard to come by, but appear to be less than 1%).

If you win the Lottery while your asylum cased is pending, you can potentially obtain your lawful permanent residency (your green card) and close out your asylum case. Your spouse and minor children can also get their green cards as your dependents. The problem is that not all asylum applicants will be eligible to “adjust status” and become residents of the United States, and this is where it gets tricky.

A DV Lottery winner who filed for asylum while she was still “in status,” meaning she was lawfully present in the U.S. at the time of filing, and who is still lawfully present here, can “adjust status.” “Adjusting status” means changing from a non-immigrant status to a lawful permanent resident without leaving the U.S.

Most asylum applicants will not be “in status” for long enough to take advantage of the Lottery. For example, if you came here on a B visa and filed for asylum, the B visa was probably valid for only six months, which means that you will be out of status after the six month period ends. The fact that you filed for asylum does not change the expiration date of your visa (the expiration date of your stay is not written on the visa itself; you can look it up on-line here). Since the Lottery process takes much more than six months, you will be out of status by the time your green card is available, which means you cannot “adjust status.” Instead, you would have to leave the United States and get the green card overseas.

Certain asylum applicants–those with long term visas, like F-1 students or H1B workers, who do not violate the conditions of their visas–might be able to remain in status long enough to adjust status and become lawful permanent residents without leaving the United States.

So if you are an asylum seeker who is out of status, can you leave the U.S. and collect your residency overseas? Maybe.

The key here is something called “unlawful presence.” Once your lawful stay in the U.S. expires, each day here is considered one day of unlawful presence. If you accrue more than 180 days of unlawful presence and then leave the U.S., you are barred from returning here for three years. If you accrue one year or more of unlawful presence and you leave, you cannot return for 10 years. This is known as the 3/10 year bar. A person who has an asylum case pending does not accrue unlawful presence. So for example, if you came on a B visa that was valid for six months, you overstayed your visa, and you filed for asylum four months after the visa expired (10 months after you arrived in the United States), you will have four months of unlawful presence. Once you file for asylum, you stop accruing unlawful presence, so even if your case takes two more years, you will still only have four months of unlawful presence, and you will not be subject to the 3/10 year bar if you leave (though you might be subject to other bars).

Assuming you are not subject to the 3/10 year bar, it may be possible to leave the U.S. and obtain your residency overseas based on the DV Lottery. However, for asylum seekers, this might mean returning to the country of feared persecution, which can be dangerous and might also raise suspicion at the U.S. consulate that your asylum case was not legitimate (if you can return to your country for the Lottery, maybe you never really feared persecution there). For asylum seekers (and others), it may be possible to leave the U.S. and pick up the green card in a third country, which would be the safer option.

If you are an asylum seeker who is subject to the 3/10 year bar and you leave to collect your residency, you will then need special permission to return (this is called a waiver). Such permission will be difficult–if not impossible–to obtain for most asylum seekers, and so people subject to the bar will most likely be unable to obtain their residency based on the DV Lottery.

Finally, asylum seekers who entered the United States without inspection are ineligible to adjust status and thus cannot take advantage of the DV Lottery (there may be a very narrow exception to this rule for people who meet certain conditions, including having been present in the U.S. since December 2000).

The bottom line here is that if you win the Lottery, you need to consult with a competent attorney. For asylum seekers, the ability to adjust status–or possibly leave the U.S. and return with residency–is crucial. It is very difficult to navigate these waters without the advice of someone who knows what he is doing. It makes sense to apply for the Lottery on your own, but if you win, it’s time to hire a lawyer.

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The U.S. government recently announced that we will be raising the refugee cap and accepting thousands of additional refugees from Syria. We’re hearing the usual angry voices decrying the “invaders” and the “jihadists,” but that is not what I want to discuss today (I’ve already written about Muslim refugees here). Instead, I want to cover two topics: First, I want to discuss the process of how refugees get selected and screened to come to the U.S., and second, I want to discuss whether the additional resources necessary to process these new refugee cases will impact people seeking asylum in the United States.

For refugees, waiting is a way of life.

For refugees, waiting is a way of life.

So how does the U.S. government decide who gets resettled in our country? What is done to prevent terrorists and criminals (not to mention phony refugees who are simply economic migrants) from taking advantage of our generosity?

First, the U.S. Refugee Admissions Program (“USRAP”) is an interagency effort led by three government agencies: the U.S. State Department, the Department of Homeland Security, and the Department of Health and Human Services, Office of Refugee Resettlement. The process also involves the United Nations High Commissioner for Refugees (“UNHCR”), the International Organization for Migration, and a number of nongovernmental organizations that assist during various stages of the process.

A refugee case begins either through a referral or a direct application. Most cases (about 75%) are referred by UNHCR. Another 25% of cases come through direct applications under various programs. For example, there are programs for U.S.-affiliated Iraqis and for religious minorities from Iran and the former Soviet Union. There is also a program for certain Cubans. The newest program is for Central American minors who have a lawfully-present parent in the United States. In addition, a few cases are referred to the program by U.S. embassies and certain NGOs.

Each applicant must complete a series of mandatory steps before she can be resettled in the U.S. These include an in-person DHS interview, a security background check, and a medical exam. The process is labor-intensive and generally takes 18 to 24 months from referral to arrival in the United States. It’s not cheap either. Last year, the USRAP cost the U.S. government over $1.1 billion.

After the refugee is selected, she must be interviewed. The interviews are conducted by DHS officers, and take place at more than 70 locations worldwide. Before the interviews, the applicants are assisted by different NGOs, such as the International Rescue Committee and the International Organization for Migration, which collect biographic and other information that is forwarded to DHS for adjudication.

Next, all refugees undergo multiple security checks before they can be approved for resettlement in the United States. Refugees are subject to the highest level of security checks of any category of traveler to the U.S. The screenings are conducted by several agencies, including the National Counterterrorism Center, the FBI’s Terrorist Screening Center, DHS, and the Department of Defense. Details of the security checks are classified, and so we do not know a whole lot about the process.

Finally, refugees undergo a health screening, TB testing, and three days of cultural orientation (where, presumably, they learn about McDonald’s, Taylor Swift, and hot pockets).

Travel to the U.S. is arranged by the International Organization for Migration. The U.S. government pays IOM for the cost of air travel, but before departing for the United States, refugees sign a promissory note agreeing to repay the cost of their travel (whether they actually repay the loan, I have no idea).

Nine domestic agencies in about 180 communities throughout the United States work to resettle the refugees. Every week, representatives from the agencies review biographic and other information to determine where to resettle each refugee. The agencies welcome refugees at the airport and begin the process of helping them settle into their new communities. The agencies also provide reception and placement services in the first 30 to 90 days after arrival. This includes finding safe and affordable housing and providing services to promote self-sufficiency and cultural adjustment. The Office of Refugee Resettlement continues to offer support to the refugees for up to five years after arrival.

So that’s the basic process that each refugee—including the additional Syrian refugees—will go through to get to the United States. It is not a fast process because of the vetting, but it is designed to minimize the risk of terrorists and criminals infiltrating the resettlement system.

One concern for asylum seekers is whether increasing the number of people admitted under the refugee program will impact the asylum system.

The asylum office is funded by USCIS customer fees. If you have ever applied for an immigration benefit, you know that filing fees can be expensive. A small portion of the fee covers the cost of operating our asylum system. So if resources are shifted around to resettle additional refugees, the asylum offices should not be affected. They have a different, independent source of funding. That’s the good news.

The possible bad news is this: All the new refugees must undergo security background checks. This process is quite opaque, and therefore we know little about it. Whether the resources used for refugee background checks will impact the background checks for asylum seekers, we don’t know. It seems that refugees and asylum seekers are subject to many of the same security checks. If so, additional background checks for refugees might further slow the background check process for asylum seekers.

Thus, while the additional refugees probably will not slow down the asylum interview schedule, they might cause more delay for asylum seekers’ background checks. Whether and how much of an impact there might be, we will know soon enough.

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The BIA’s Tepid Response to Asylum Fraud

by Jason Dzubow on September 11, 2015

in Asylum, Asylum Seekers, BIA

A recent Board of Immigration Appeals (“BIA”) decision upheld an Immigration Judge’s adverse credibility finding where the respondent’s affidavit was “substantially similar, and in some regards identical, to an asylum application previously filed by respondent’s brother in a different proceeding.” Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015).

The BIA should think of more creative ways to prevent cheating.

The BIA should think of more creative ways to prevent cheating.

In this case, the first brother came to the U.S., filed for asylum, and was granted. In his asylum application, brother # 1 stated that he was arrested two times–in 2004 and 2006–and he described what happened during those arrests. Later, the second brother (respondent or R-K-K-) came to America and filed for asylum. He also claimed to have been arrested two times–in April and May 2010. R-K-K- described his arrests in terms remarkably similar to his brother’s case, including the time of day when he was arrested, the abuse endured, conversations with abusers, and psychological harm. R-K-K- even included in his affidavit the same spelling and grammar mistakes as his brother.

After informing R-K-K- of the problem, the Immigration Judge (“IJ”) gave him time to gather evidence and explain himself. R-K-K- claimed that the similarities were the result of the brothers’ “common backgrounds and experience,” and because they were assisted by the same transcriber. The IJ asked R-K-K- to locate the transcriber, but R-K-K- was unable to do so.

The IJ did not accept R-K-K-‘s explanation. He found R-K-K- not credible and denied the application for asylum. R-K-K- appealed.

The BIA affirmed the IJ’s decision and issued a published decision in order to set forth a “procedural framework under which an Immigration Judge should address… inter-proceeding similarities.” The short answer here is that (1) the IJ must give the respondent notice that her case has been found substantially similar to another case; (2) allow her an opportunity to explain what happened; and (3) determine the respondent’s credibility based on the totality of the circumstances. The shorter answer is, Who cares?

I do not know how often “inter-proceeding similarities” are an issue, but I imagine it happens now and again. When I was a Judicial Law Clerk at the end of the last century, I worked on a Somali case that was essentially identical to an unrelated person’s case. The affidavits and events were word-for-word the same. Only a few names had been changed to personalize the story a bit. So I suppose there is nothing wrong with establishing a framework for analyzing the problem.

But to me, it seems that the Board in R-K-K- is missing the larger issue. Yes, it appears that R-K-K- committed a fraud, and yes, under the applicable legal standard, he should probably be deported. And fine, it’s nice to have a framework to assess credibility when this issue comes up. But what about the missing “transcriber”? Where is the person who prepared this fraudulent case? He is nowhere to be found. And the BIA does not seem to care.

Frankly, the BIA’s decision here makes me angry. Everyone in this business knows that asylum fraud is a problem. We also know that there are (hopefully) a small number of attorneys and notarios (or transcribers) who are responsible for much of this fraud. These people damage the asylum system and make life more difficult for legitimate asylum seekers.

Some–perhaps most–of the fraudsters’ clients are active participants in the fraud. But at least in my experience cleaning up their messes, many of these “clients” are naïve victims of unscrupulous attorneys who find it all too easy to manipulate frightened people who do not speak English, who are predisposed to mistrust authority (because they were harmed by the authorities in the home country), who do not understand “the system,” and who have no support network in the United States.

So is R-K-K- a victim or a villain? We don’t know, and given the BIA’s “framework” for analyzing similar cases, I guess we never will.

How could this decision have been better? It seems a crime was committed here, so why not involve law enforcement? When a possible fraud has been detected, the Board could require the IJ to inform the applicant about the possible fraud, advise him that if he cannot overcome the finding of fraud, he faces criminal and immigration penalties, and give him an opportunity to switch attorneys and/or work with law enforcement to expose and prosecute the guilty party. He should also be made aware of the benefits of cooperation. The alien can refuse to go along, of course, in which case he will face the consequences. But if he does cooperate, he should be rewarded, particularly if it turns out that he was more of a victim than a co-conspirator.

There is precedent for this type of coercion in immigration proceedings. In Matter of Lozada, the BIA basically held that if an alien has been denied relief due to the ineffective assistance of her attorney, she can reopen her case, but to do so, she generally must file a bar complaint against the ineffective attorney. This requirement forces attorneys to police their own by possibly having their colleagues disbarred. I don’t like it, but I’ll file a complaint when it’s justified. And–so the reasoning goes–if the offending attorney is barred from practice, his future clients/victims will be protected.

The problem addressed by R-K-K- is worse than the one described in Lozada. In Lozada, we are talking about ineffective assistance of counsel–this ranges from a benign screw-up (which can–and does–happen even to the best attorneys) to dereliction of duty. In R-K-K-, on the other hand, the Board is addressing outright fraud: The attorney or notario (or applicant) has appropriated someone else’s case as her own in the hope of outwitting the fact-finder. This is malicious and dangerous behavior that requires punishment. The regime created by R-K-K- allows the little fish to fry and the big fish to keep swimming. It addresses a symptom of the fraud without reaching the source. I hope that the BIA will one day revisit this issue and that it will take a stronger stance against asylum fraud.

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History is filled with people who think that their ignorance should trump your life.

History is filled with people who think that their ignorance should trump your life.

It’s September, and for most of us, it’s a time to remember a beautiful, clear morning in 2001 when the world turned upside down.

Since then, we’ve witnessed wars and terrorist atrocities, which seem only to get worse with each passing day. I interact daily with asylum-seeker clients whose lives have been disrupted by such events, and whose friends and loved ones have died (or more accurately, been murdered). The recent destruction of an ancient temple in Palmyra, Syria and the murder of the 81-year old chief archeologist there strikes home for me, as I visited those magnificent ruins when I was a young man.

Members of Al Qaida, ISIS, and the Taliban deliberately kill innocent and defenseless people. They rape children. They destroy history. There really are no words strong enough to condemn their actions.

But one word that I have often heard used to describe terrorists is “cowardly.” I for one, do not think the terrorists are cowards in the normal sense of the word. Maybe killing innocent people is a cowardly act, but voluntarily going to fight in Syria or Iraq, or flying a plane into a building are not the actions of cowards. They are evil and misguided, but–at least to me–not cowardly.

There is another, perhaps more profound, application of the label “coward” when it comes to such terrorists, however. It is the moral cowardice of harming another person without making the effort to understand that person’s humanity. It takes courage–sometimes great courage–to understand people we view as different from ourselves. When the 9-11 hijackers flew their planes into the twin towers and the Pentagon, they were cowards in the sense that they had failed to consider the individual human beings who were their victims. This type of cowardice allows people to do terrible things. America has harmed “us;” therefore we are justified to harm “them.” But this fails to account for the fact that there is no “them”–there are only people, living their lives day to day.

Perhaps the terrorist can justify their actions to themselves: No one in the U.S. is innocent; they are all complicit in their country’s systematic attack on Islam; God demands the destruction of the non-believer. And while the terrorists planned and prepared for their attack, I’d wager that none inquired into the lives they hoped to destroy. Did they spend time with the loving husband and father of a new baby girl? Did they visit and get to know two young daughters of a Georgetown professor who were on their way to Australia? Did they bother to meet the hard-working firefighter and father of eight who had devoted his life to serving his community? Of course they didn’t. To meet and come to know your “enemy” destroys the very notion of us-versus-them. While it’s easy to project your hate and anger and fear onto “the other,” it is a whole lot more difficult to depersonalize and extinguish an actual human being when you have come to know her (you can learn about those who died on 9-11 at Legacy.com).

For me, this is the greatest form of cowardice of our time. Though we live in a world that is more integrated than ever, we still manage to deny the humanity of our fellow human beings. Moral cowardice.

Which brings me to Donald Trump. I am not saying that Mr. Trump is a terrorist, but he has something in common with terrorists. You guessed it: Moral cowardice.

Mr. Trump–and the bevvy of Republican contenders racing to keep up with him–want to detain, deport, and deter many potential immigrants, including “illegals,” refugees, asylum seekers, and H1B workers. Of course it’s a whole lot easier to deport people you’ve labeled illegals, “rapists” and “killers.” It’s harder when you have to contend with actual human beings and their stories.

Take the case of R-H-, a young man from Honduras. A gang member tried to date his sister, and when the parents refused, the gang murdered his mother, father, and sister. R-H- escaped and came illegally to the U.S., where he was detained. R-H- did not have a lawyer, and the Immigration Judge denied his asylum application and ordered him deported. He appealed pro se. I participate in the BIA Pro Bono Project–where we screen unrepresented cases and refer them to pro bono attorneys–and I read his case and recommended it for referral. Ultimately, R-H- was granted asylum (and finally released from detention).

Now maybe you believe that all “illegals” like R-H- should be deported. But before you reach that conclusion, you have a moral (and intellectual) obligation to understand exactly what you are advocating. R-H- was the victim of horrific gang violence. If he were deported, he likely would have been murdered. It’s a reasonable (though in my opinion, wrong) policy position to state that people like R-H- should be deported–our country has limited resources, we have to help “our own” before we help others, etc. But to create a straw man–an “illegal”–without knowing anything about the real person, and then to call for his deportation, is moral cowardice. Before you say, “Deport them all,” you better know who it is that you are deporting and exactly what that means.

The funny (or ironic) thing is, even the most anti-immigration people often have compassion for the immigrants they know. My friend was a fundraiser for Pat Buchanan, who is certainly no friend of immigrants. But when my friend’s friend landed in removal proceedings (for assaulting a cop, no less), my friend referred him to me for help. After we won the case, my friend sent me a wonderful note: “You did the most important thing a person can do–you made me look good for recommending you.” I love that, but the point is, even my friend who supports Pat Buchanan recognized the humanity in the immigrant he knew and wanted him to remain in the U.S. To look at an abstract group of “illegals” is one thing. To know the individual is quite another.

Indeed, when Mr. Trump met with Dream Act activists two years ago, he told them, “You convinced me.” In the face of hearing their stories, even The Donald wanted to help.

To some degree, all of us are guilty of dehumanizing “the other.” It’s impossible not to. But when we advocate for positions that harm others without understanding–or even trying to understand–the potential harm, we fail as moral beings. Hopefully, our nation expects better than that from itself and from its presidential candidates.

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In November 2012, we received a “recommended approval” from the Asylum Office for one of my Afghan clients–we’ll call him Dave, though as you might guess, that is not his real name.

Grant or grant not. There is no try.

Grant or grant not. There is no try.

We were pleased with the news. Dave had worked for the United Nations and as a contractor for USAID- and NATO-funded agencies in Afghanistan. The Taliban became aware of his work and threatened him. They contacted him by phone. They said he was an infidel and an American spy. They told him, “We are watching you. We know everything about you and your family. We know where you are.” A bearded stranger approached his children after school and tried to lure them away from their classmates. The threats escalated and so Dave decided to seek asylum in the U.S.

Dave had a United States visa, but his wife and children did not, so he came alone, in the hope that this would end the threats and that his family members could follow him later.

In those days–before the asylum backlog–cases moved more quickly. We filed the case in September 2012. Dave was interviewed the next month and received his recommended approval in November. So far, so good (but as Megadeth might say, “so what?”).

But what does it mean, this “recommended approval?” A person receives a recommended approval if the Asylum Office has determined that she is eligible for asylum, but for some reason the decision cannot yet be issued. The Asylum Office generally won’t give the reason why they cannot issue the decision, but in most cases, it seems to be because the security background check is not complete.

So what is the “security background check,” you ask. Every asylum applicant has their biometric and biographic data checked against several government data bases to determine if they might be terrorists or criminals. While these checks never seem to cause delay in Immigration Court cases (defensive asylum cases), they can take a long time for Asylum Office cases (affirmative asylum cases). Why is that? I don’t know. I asked once at a USCIS meeting, and they said it was because there are different checks at the Court and at the Asylum Office. I’ve never found anyone who could explain why the two agencies (DOJ and DHS) use different background checks, and because security issues are hush-hush, I doubt I’ll ever get a good answer on this point.

So Dave’s case was delayed while we waited for the final approval. In those pre-backlog days, the one benefit of a recommended approval was that the applicant could immediately apply for an EAD–an employment authorization document. In general, if an asylum applicant does not have a decision within 150 days of filing, he can apply for an EAD. With the current backlog, nobody gets a decision in 150 days and so everyone applies for the EAD. Prior to the backlog, many people received decisions in less than five months; others–like Dave–received a recommended approval in less than 150 days. Such people could immediately apply for the EAD. Dave applied for his EAD.

For asylum applicants with a recommended approval, the worst part about waiting is the uncertainty. When will the Asylum Office issue the final approval? Might something change so that the case is denied? For people separated from family members, the uncertainty and loneliness is extremely stressful.

As the months passed, our initial happiness with Dave’s recommended approval began to fade. When would the final decision come? I periodically made inquiries to the Asylum Office. We never received a substantive reply.

Then Dave’s wife got sick. He was worried about her, and worried about his children, but he decided to stay in the U.S. and hopefully get a decision soon. More time passed.

A year after we received the recommended approval, one of Dave’s children became seriously ill. We notified the Asylum Office and again requested a decision. We got no response. But Dave continued to wait and hope that he would receive his final approval so he could bring his family to safety.

The days and weeks and months continued to pass. Finally, as we reached the two-year anniversary of Dave’s recommended approval, he called me and told me that he had decided to return to Afghanistan. His children were suffering from health issues and he had not seen them (except via Skype) for more than two years. He was giving up on his asylum case and returning to his family, and to the danger.

So what can we learn from Dave’s story? My feeling about the whole fiasco is that Dave would have been far better off if the Asylum Office had simply denied his case in November 2012 rather than issue a recommended approval. Under U.S. law, a person does not have a duty to rescue another who is in danger. However, if a person undertakes a rescue, he is obligated not to act negligently. The U.S. has created a system for asylum. People like Dave rely on that system. In this case, the system failed Dave, and–at least for him–the lure of asylum and of safety created by the asylum system cost him and his family dearly: Two-plus years with his wife and children lost, other options for safety missed, savings exhausted.

There is an ironic denouement to the story. A few months after Dave left the U.S. and 2.5 years after the recommended approval, the Asylum Office sent a notice to get fingerprinted: “Please process the fingerprints as quickly as possible,” the note advised. Was this a cruel joke? I tried to have the fingerprints done at the U.S. Embassy in Kabul, but they could not (or would not) do it. We have still not heard from the Asylum Office about Dave’s case. I suppose it remains pending, but who knows? When last I emailed Dave (about the fingerprints), he replied, “I still have hope and… I am hopeful.”

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What Is “Persecution”?

by Jason Dzubow on August 18, 2015

in Federal Courts

Language is intensely personal. When I say the word “house,” I have one image in mind, and when you hear it, you have your own image in mind. Indeed, every person on Earth who hears the word “house” will have his own mental image of what that means. Despite all this, we manage to communicate.

The "comfy chair" constitutes persecution only in the Ninth Circuit.

The “comfy chair” constitutes persecution only in the Ninth Circuit.

But when we move from interpersonal communication to the more precise language of the courts, the problem becomes more acute. Perhaps it was best summed up by Supreme Court Justice Potter Stewart, who famously declined to define the term “pornography.” Instead, he stated, “I know it when I see it” (less well-known was his next line: “And I enjoy seeing it at least twice a day”).

In asylum law, we have a similar problem–not with pornography, heaven forbid–but with another “p” word: “persecution.”

“Persecution” is not defined by statute, and the Board of Immigration Appeals–the agency tasked with interpreting the immigration law–has failed to provide much useful guidance (as usual). And so the buck has been passed to the various federal circuit courts.

A recent article by Scott Rempell, an Associate Professor at South Texas College of Law/Houston, surveys the landscape with regards to definitions of “persecution.” Prof. Rempell finds that while certain conduct is universally viewed as persecution, there exists “staggering inconsistencies” between the various federal appeals courts: “eleven different appellate courts independently pass judgment on EOIR’s assessments of whether harm rises to the level of persecution—a significant number of spoons stirring the persecution pot.” The study revealed what Prof. Rempell calls an “unequivocal chasm” in the consistency of persecution decisions:

For example, the results [of the study] illustrate how a one-day detention involving electric shock compelled a finding of persecution, while a ten-day detention involving electric shock did not. Similarly, while several weeks of psychological suffering necessarily established persecution, several years of even greater psychological suffering failed to cross the persecution threshold.

To those of us who have litigated these cases in the federal courts, Prof. Rempell’s observation rings all-too true. But quantifying the problem is quite difficult because, as Prof. Rempell notes, the cases are so fact-specific:

Courts… compare and contrast to previous persecution cases. And due to differing opinions on what the harm threshold should be, panels are free to emphasize or deemphasize any factual nuance they choose between the cases that they are reviewing and previous cases they have decided.

Despite this problem, the article attempts to categorize the different types of harm and discern areas of consistency and inconsistency. Prof. Rempell finds five broad areas of consistency–conduct that all courts consider persecution:

(1) Brutal and systematic abuse, where the applicant has sustained harm on a consistent basis over a prolonged period of time; (2) Sufficiently Recurrent Combination of Cumulatively Severe Harms, where there is an ongoing pattern of physical, psychological, and other types of harm, as long as the harms cumulatively establish a sufficiently high level of severity; (3) Recurrent Injury Preceding a Harm Crescendo, where there are multiple incidents of relatively severe harm that culminates in particularly egregious harm; (4) Sufficient Harm Preceding a Substantiated Flight Precipitator, where a series of harmful events culminates in a credible and substantial threat of harm, causing the applicant to flee; and (5) Sufficiently Severe or Recurring Sexual Abuse.

The problem with this list (aside from the fact that I did not give you all the details of the Professor’s analysis) is pretty obvious–we are stuck using words to describe harm, and this is difficult. One person’s idea of “brutal and systematic abuse” may not be the same as the next person’s. Nevertheless, the list gives us the broad parameters of what constitutes persecution in all federal courts.

When the persecution is less severe–as it is in most contested cases–things become even more tricky. Prof. Rempell identifies four areas where the appellate courts produce inconsistent decisions:

(1) A single instance of physical abuse and detention; (2) Psychological harm where there is a single fear-inducing incident; (3) Psychological harm where there are continuous fear-inducing incidents; and (4) “Other Harm Inconsistencies,” where courts looked at similar incidents and reached opposite conclusions concerning persecution.

The disparities between judges and circuits when it comes to determining persecution are stark. For example, the First Circuit (New England) reversed the BIA’s persecution finding in just 5% of cases. The Ninth Circuit (California, et al) reversed the BIA’s findings in 65% of cases.

Prof. Rempell attributes much of the disparity to “the way courts interpret the meaning of persecution, and how they characterize and measure harm.” “The fact that decades of adjudications involving over a million asylum claims have failed to yield a consistent approach on the systematic harm question is nothing short of astounding.” So what’s to be done? 

The article suggests some preliminary reforms, but the bottom line is this: Immigration agencies–and specifically the Board of Immigration Appeals–need to provide “guiding principles” on what constitutes persecution. Of course these inquiries are fact specific, and of course it is difficult to quantify physical or psychological harm, but as Prof. Rempell says, the “fact-intensive nature of persecution inquiries… should not act as a shield to prevent the creation of general severity principles, by means of regulation or adjudication.”

As a lawyer who frequently encounters the question “What is persecution?,” I believe Prof. Rempell’s article is important. He has quantified a problem that we have all experienced in our practice. Now it’s time for the BIA to do something about it.

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For some time now, we’ve been hearing from the Asylum Division that they would post a “Scheduling Bulletin” to give affirmative asylum seekers a better idea about wait times. Well, the Bulletin has finally arrived, which is–in a sense–good news. But it’s also bad news, since now we see exactly how slowly things are progressing at most asylum offices.

First off, if you’re curious about the status of your asylum office, check out the Bulletin here. What you’ll see is a breakdown of each asylum office and which cases they are currently interviewing (as of July 2015). So, for example, in July 2015, the Arlington Asylum Office was interviewing cases originally filed in August 2013. The chart also lists which cases each office was interviewing over the past few months, so you can see how quickly (or not) each office is moving through its cases.

Most geologists agree: The asylum offices are moving pretty quickly (except for Los Angeles).

Most geologists agree: The asylum offices are moving pretty quickly (except for Los Angeles).

Reviewing the Bulletin, a few things jump out at me. First, and most distressing, cases are moving very slowly at most asylum offices, and a few offices–notably Chicago, Los Angeles, and Miami–have made no discernible progress in the last four months. One mitigating factor here is that it’s summer, a time when the Southern border is particularly busy. Hopefully, once the number of asylum seekers arriving at the border wanes (as it generally does in autumn), the asylum offices will start interviewing more backlogged cases (if you are not familiar with the “asylum backlog,” please see this posting).

Another point worth noting is that the two asylum offices with jurisdiction over the Southern border states–Los Angeles and Houston–represent the slowest and the fastest offices, respectively. Los Angeles is currently interviewing cases filed in August 2011 (which is slower than I realized–I had thought they were interviewing cases from 2012) and they have been stuck on the August 2011 cases for the last four months. On the other hand, Houston, Texas is the fastest asylum office. They are interviewing cases filed in April 2014, though they have made almost no progress in the last four months either. What’s strange is that there is such disparity along the Southern border. I do not know why resources cannot be distributed more evenly to give some relief to asylum seekers at the LA office.

The only asylum office that has shown significant movement over the last four months is New York. In April 2015, the NY asylum office was interviewing cases filed in January 2013. By July 2015, they were interviewing cases filed in June/July 2013. Newark, New Jersey has also done reasonably well, advancing from December 2012 to April 2013 during the same period.

Rescheduled cases and cases involving children (many of the asylum seekers at the Southern border are children) receive priority over “regular” asylum cases. And according to the Bulletin, the asylum offices in Chicago, Houston, Los Angeles, and Miami have had many such cases. Presumably this explains the lack of progress in those asylum offices.

Finally, for people with cases pending at one of the sub offices, the Bulletin notes that it “currently does not include asylum interviews occurring outside of the eight asylum offices or the Boston sub-office (e.g. interviews occurring on circuit rides).” “Asylum offices schedule circuit ride interviews as resources permit.” The Bulletin suggests that applicants contact the “asylum office with jurisdiction over your case for more detailed information” about the schedule at sub offices. You can find contact information for each asylum office here.

So there you have it. The Bulletin will be updated monthly so you can track how quickly each asylum office is moving through the backlog. Though the current situation is discouraging, at least the Bulletin provides some information about where we stand now, and maybe some hope for those who are waiting.

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My associate Ruth Dickey continues her review of data from our cases filed at the Arlington Asylum Office. She reports her findings here:

One of the biggest sources of client frustration is delay after the asylum interview. Clients are often separated from family members who remain in danger. They feel as though the future is uncertain, and they see no end in sight to their ordeal. The lack of a final decision is stressful and depressing.

Attorneys also face stress and extra work due to delayed decisions. For example, we repeatedly contact the Asylum Office about our clients’ cases, we answer client questions, and we renew employment authorization documents. We have resisted charging more money for this extra work, but it makes operating a business very difficult. Also, we have almost no power to make the decisions arrive faster, and so we feel the stress of our clients’ frustration without being able to do much about it.  

Looking at data from 136 of our cases—filed in 2013 and 2014 in the Arlington, Virginia Asylum Office—we can see that about one-third of the cases have been interviewed but are still awaiting decisions. The charts below compare cases filed in 2013 with cases filed in 2014:

Chart A1

 

ChartA2

The Arlington Asylum Office is working through cases filed in 2013. But unfortunately, it is moving very slowly—we currently have no cases scheduled for interviews in Arlington.

The Asylum Office generally has a goal of issuing its decision two weeks after the interview takes place. Our data shows that they usually do not meet this goal. Of our interviewed cases, only about 1-in-5 applicants received a decision within two weeks of the interview:

Chart A3

For clients who have been interviewed and have received decisions, wait times vary widely. The median wait time for 2013 and 2014 cases was 34 days – but ranged up to 719 days (and keep in mind that this does not include data from people who have been interviewed and who are currently waiting for a decision). The following chart shows the wait time until a decision was made, by interview date:

Chart A4

Of course, dozens of our clients have not gotten decisions yet, and so we do not know how long they will ultimately wait.

As the next chart shows, we currently have several clients who have been waiting over a year for a decision, and a few who have been waiting for more than two years. If these clients’ information were added to the chart above, it would tell an even more dismal story since they have already waited far longer than the median wait time for cases where a decision was issued.

Chart A5

Lastly, let’s look at recommended approvals. Recommended approvals are issued in cases where the Asylum Office is convinced that a case meets the standard for asylum, but the background check is not yet complete. People with recommended approvals can apply for employment authorization, but cannot sponsor their family members who are waiting to join them in the U.S. The following chart shows how long our clients have waited from the date of the recommended approval to the date of the final decision (never mind how long they might have already waited to get the recommended approval). Information about people who have received recommended approvals and who are still waiting for their final decisions are also shown in the same chart:

Chart A6

Despite making numerous inquiries about our pending cases, we have never received a specific answer as to why delays occur. Usually, the Asylum Office informs us that the delay is due to the security background check. However, it is unclear why the background checks take so long for affirmative asylum seekers, but do not cause delays for other applicants seeking benefits from USCIS. Interestingly, asylum seekers in Immigration Court do not face these types of delays either, even when they come from conflict zones or countries where terrorism is a concern. Only affirmative asylum seekers seem subject to these inordinate delays.

Can we draw general conclusions about the operation of the Arlington Asylum Office based on our data? It is difficult to say. Many of our clients come from places like Afghanistan and Iraq, where security-background-check delays are more burdensome. Also, our sample size is relatively small. Nevertheless, our findings comport with what we hear from other attorneys and applicants with cases in Arlington (and other asylum offices).

Since the backlog began in 2013, the Asylum Division has been working to improve the situation by hiring more officers and modifying some of its procedures. We are hopeful that the asylum system will continue to change to better meet applicants’ needs. Until then, we will continue to analyze data from our cases.

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Lawyers vs. Clients

by Jason Dzubow on July 24, 2015

in Legal

Presenting an asylum case to an Immigration Judge or an Asylum Officer can be tricky business. There are an infinite number of ways to tell the story: How much detail to include, what to keep out, how to deal with derogatory facts. Not surprisingly, sometimes lawyers and their clients have different ideas about how the case should look. So what happens when lawyers and clients disagree?

CYA

CYA

First, we should acknowledge that there are areas where the lawyer’s interest and the client’s interest are in harmony, and other areas where those interests diverge. For example, both the lawyer and the client want to win the case. They both would like to finish the case as quickly as possible. They both want a good relationship with the other.

There are also areas where the lawyer’s and the client’s interests differ. The lawyer often wants to do less work on the case, while the client wants the lawyer to do more work. The lawyer has to deal with many cases, but the client wants her case, and her phone calls and emails, to receive the highest priority. The lawyer has her own ideas about how the case should be presented; the client may have a different idea. For attorneys in private practice (like yours truly), the lawyer wants to charge more money; the client wants to pay less. A good (i.e., ethical) attorney generally puts his own interests behind those of his client, but only to an extent, and when discussing “lawyers vs. clients,” it is helpful to acknowledge that there are inherent tensions in the relationship.

Here, though, I am less interested in the tension related to workloads and fees, and more interested in conflicts that arise between the attorney and her client with regards to strategy—how to present the case. But that conflict does not exist in a vacuum. Rather, it must be viewed in the context of all the other tensions inherent in the relationship, and—to make matters worse—it exists in the stressful environment of an asylum case, which can have life-changing implications for the client and her family. All this, we must keep in mind.

So what to do when the lawyer and the client cannot agree?

It happens to me periodically that I have a client who has his or her own idea about how a case should be presented, and that idea conflicts with what I think best. It is perhaps one of the downsides of experience, but the more cases I do, the less patience I have for clients who question my judgment. The problem with this attitude, of course, is that I am sometimes wrong, and if my experience blinds me to that fact, I am clearly disserving my client. For this reason, I try to practice humility and always carefully consider the client’s viewpoint. As the old prayer goes: “Lord, give me patience, and give it to me right now!”

Sometimes, however, the client is simply wrong about something: A “friend” told the client to hide her trip to Iran from the U.S. government; a person who is still legally married but separated wants to claim that he is single on an immigration form; someone with a criminal conviction wants to explain to the Judge that “it wasn’t my fault!” In cases like these, the lawyer needs explain the problem, and usually the client understands (the U.S. government probably already knows about the trip to Iran, so trying to hide it is a mistake; even though you are separated, you need to indicate “married” unless the marriage is terminated by death or divorce; the Judge wants to hear you take responsibility for the crime, apologize, and explain how you will not repeat the same mistake).

Other situations are more subtle: The client wants to add too much irrelevant information to her asylum affidavit, for example. In a situation like this, I explain my point of view (the fact-finder will become frustrated if they get bogged down in unimportant details and it will distract from the thrust of the case) and usually the client agrees. If not, as far as I am concerned, it’s the client’s case and ultimately it’s his decision to make. My concern is that the client’s decision is made knowingly (maybe this is why lawyers are called “counselors” and not “deciders”).

In cases where the client and I cannot agree, and where I think the client’s decision will negatively affect the outcome of the case, I write down my position and make the client sign it. It’s rare that I have to do this, but I want to have a record of what happened in case the client decides to blame me for losing the case (the technical term for this is CYA – “cover your ass”). Also, if I make the client sign such a document, it helps underscore the seriousness of the client’s decision, and hopefully dissuades him from harming his case.

My feeling is that it is better to avoid a conflict with the client before it begins. So what can be done to minimize conflicts related to case presentation?

The most obvious solution is communication, and this is primarily the lawyer’s responsibility. As lawyers, we need to be transparent about what we do. If we over-sell our services, and promise the client the moon and the stars, we really can’t complain when the client expects us to deliver. It’s the same with case presentation. The client needs to understand the lawyer’s role, and what the lawyer can and cannot do (we can’t help a client lie, for example). I find it helpful to show potential clients examples of my work, so they have an idea how their case will look at the end of the process. I also outline how we will prepare the case, what we need from the client, what my assistants will do, and what I will do. I also try to give them an idea about what we don’t know–primarily, how long the case will take, given the very long backlog. To paraphrase the old ad, a well educated client is our best customer.

For many–if not most–asylum seekers, the process is stressful and scary. They are separated from loved ones and living with great uncertainty. As lawyers, we absorb some of that stress. By communicating effectively with our clients, we can reduce their stress and our own, and we maximize the chances for a successful outcome in their case.

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My intrepid associate, Ruth Dickey, has been analyzing data from our cases filed at the Arlington Asylum Office during the past few years. She reports her findings here:

In December 2014, USCIS announced that it would address the asylum backlog in a new way: “First in, first out.” Prior to this new policy, the Asylum Offices were trying to complete as many cases as possible within 60 days. Cases that could not be interviewed within 60 days fell into the backlog. Over time, the number of cases entering the backlog grew and grew. Nationally, as of May 2015, over 85,000 applications are stuck in the backlog.

When we learned about the new “first in, first out” policy, we were hopeful that our oldest cases would be interviewed one after another in quick succession. Unfortunately, that didn’t happen—at least not yet (hope springs eternal, even for asylum lawyers). Let’s take a closer look at what is going on at the Arlington Asylum Office, the office where most of our cases are pending.

During 2013 and 2014, we filed 136 cases that are analyzed here (some cases—where the applicant moved to a different jurisdiction, for example—were excluded from the analysis in order not to skew the data). As you can see from the chart below, a large percentage of our cases fell into the backlog during those years, particularly during the second and third quarters of 2013. The low interview numbers in mid-2013 are likely due to the summer “border surge,” when many Central Americans started arriving at our Southern border and requesting asylum. The surge continued into 2014 and continues up until today. Especially in the beginning, USCIS was not prepared for the surge, and so we suspect the low interview numbers during the second and third quarters of 2013 are due to the government’s inability to deal with the sudden increase in applications.

Chart 1

As you can see in the next chart, a higher percentage of our cases were interviewed in 2014 than in 2013, suggesting that the Asylum Office was handling the volume more effectively. Even so, a significant portion of our cases—almost 40%—fell into the backlog in 2014. Given that the government has already interviewed the majority of cases from the fourth quarter of 2013 and from 2014, we are hopeful that once the Asylum Office reaches those cases, it will move through that portion of the backlog more quickly (the Arlington Asylum Office is currently interviewing cases filed in August 2013—about half way through the third quarter).

chart 2

Since the change to the “first in, first out” policy, things have been moving slowly in Arlington. Only 16 of our backlogged cases have been scheduled for interviews during the first six months of 2015. As a point of comparison, during the same period in 2014, we had exactly twice that many—32 cases—interviewed.

For those people in the backlog who have been scheduled for an interview in 2015 (since the implementation of the new policy), how long did they have to wait? From the date the application was received until the date of the interview, the median wait time was 678 days. The following chart shows the wait times (in days – on the vertical axis) for our clients who were interviewed in 2015. You can see that there is some variability in wait times:

The family that had to wait the longest—809 days—had been scheduled for an earlier interview, but was rescheduled because their file was apparently not in the Asylum Office (where it disappeared to, we don’t know). It took an additional four months to retrieve the file and get the interview. Hopefully, we won’t see this problem again. Another of the longer-delayed cases had been scheduled for an earlier interview, but was rescheduled by the Asylum Office without explanation. This happens periodically, and we even saw it on occasion in the good old days, prior to the backlog.

Once people are finally interviewed, how long does it take to get a decision? The Asylum Office generally tries to make decisions in two weeks. Of the 16 cases from 2015, eight have received decisions. Sixteen cases is a very small number, and so we can only draw limited conclusions from this data. However, the oldest case in the group of 16 has been languishing since January. And, unfortunately, this person is not alone. Many others who were interviewed in 2013 and 2014 are still waiting for their decisions.

So that is a look at what we know now. As we continue to analyze the data, we will post what we learn.

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The Office of the Citizenship and Immigration Services Ombudsman recently released its 2015 annual report to Congress. The report discusses all aspects of USCIS operations, and provides some new information about the asylum backlog and the government’s efforts to improve the situation.

To resolve the backlog, each Asylum Officer will have to complete 243 cases. Ugh.

To resolve the backlog, each Asylum Officer will have to complete 243 cases. Ugh.

You may already be familiar with the Ombudsman’s office–they are the ones who provide individual case assistance to affirmative asylum seekers and other USCIS “customers” (as they are called). They are also tasked with improving the quality of USCIS services by making recommendations to improve the administration of immigration benefits. The annual report includes these recommendations.

In this posting, I want to discuss a few of the report’s findings that relate to asylum. Also, I will discuss the steps USCIS is taking to address the asylum backlog, and some recommendations for future improvements.

First, some findings. The report summarizes where we are now: 

A substantial backlog of affirmative asylum applications pending before USCIS has led to lengthy case processing times for tens of thousands of asylum seekers. Spikes in requests for reasonable and credible fear determinations, which have required the agency to redirect resources away from affirmative asylum adjudications, along with an uptick in new affirmative asylum filings, are largely responsible for the backlog and processing delays. Although USCIS has taken various measures to address these pending asylum cases, such as hiring additional staff, modifying scheduling priorities, and introducing new efficiencies into credible and reasonable fear adjudications, the backlog continues to mount.

All this, we already know, but here are some numbers: At the end of FY 2011 (September 30, 2011), there were 9,274 affirmative asylum cases pending before USCIS. By the end of December 2014, that figure reached 73,103—an increase of over 700 percent (by May 2015, the number had grown to over 85,000 cases).

Probably the main reason for the backlog is the large numbers of asylum seekers arriving at the Southern border from El Salvador, Guatemala, and Honduras. When someone arrives at the border and requests asylum, an Asylum Officer gives the applicant a reasonable fear interview or a credible fear interview (if the person “passes” the interview, she will generally be sent to Immigration Court, where a Judge will determine whether she qualifies for asylum). In FY 2011, there were a total of 14,627 such interviews. In FY 2014, there were 60,085 – a four-fold increase. The Ombudsman notes that, “Various factors have contributed to this rapid rise in credible and reasonable fear submissions, including widespread crime and violence in Central America, where a majority of the applicants originate.” The report continues:

These substantial increases demand considerable USCIS personnel and resources. For example, many Asylum Offices now send officers to various detention facilities around the nation to conduct credible and reasonable fear interviews. Such assignments deplete resources previously dedicated to affirmative asylum applications.

Another reason for the backlog is that the rate of new affirmative asylum filings has grown. “In FY 2011, asylum seekers filed 35,067 affirmative asylum applications with USCIS.” “In FY 2014, asylum seekers filed 56,912 affirmative asylum applications, a 62 percent increase.”

In addition, between September 2013 and December 2014, the number of “Unaccompanied Alien Children” with cases before USCIS increased from 868 to 4,221. These cases receive priority over backlogged adult applicants.

So what has USCIS done to address the delay?

First, the Asylum Division has been hiring more Asylum Officers. In 2013, there were 203 officers; by January 2015, there were 350, and the Asylum Division has authorization to elevate its total number of Asylum Officer positions to 448. Unfortunately, Asylum Officers do not stay in their jobs very long. The average tenure is only 14 months. One reason for the low retention rate may be that the Asylum Officer position does not have great promotional potential. Salaries start in the low $50-thousands and max out at less than $100,000. By comparison, lawyers who work in other areas of the federal government can earn more than $150,000 per year (and salaries in the private sector can be much higher).

Second, starting in late December 2014, USCIS now interviews cases on a “first-in, first-out” basis, meaning that the oldest cases are interviewed first. There is concern that such a system will encourage people to file frivolous cases in order to get a work permit while their cases are pending, but so far, we really do not know if that is happening.

Third, in May 2015, USCIS announced that it would begin publishing estimated wait times for asylum interviews at the different Asylum Offices. Supposedly, they will provide an approximate timetable—roughly a two to three-month range—within which the interview will take place. We have been hearing about this idea for some time, and hopefully, USCIS will post this information soon.

Finally, “USCIS has implemented a range of policy and procedural changes in the credible and reasonable fear contexts that have had the effect of shortening case processing times.” For example, more interviews are conducted telephonically, as opposed to in-person, which helps save the Asylum Officer’s time. Of course, shortcuts potentially affect the quality of the decision-making, and USCIS is monitoring this. Personally, given that the large majority of applicants “pass” their credible and reasonable fear interviews, I think it would save time to eliminate the interviews altogether, and allow anyone to submit an asylum application and go directly to court.

The report also lists two ways to potentially accelerate the interview date: (1) interview expedite requests; and (2) interview “Short Lists:”

First, each Asylum Office accepts and evaluates requests for expedited interviews, granting or denying those requests based on humanitarian factors, such as documented medical exigencies, as well as the Asylum Office’s available resources. Depending on the Asylum Office, applicants may make these requests in-person or via email. Some Asylum Offices also maintain Short Lists, containing the names of backlogged applicants who have volunteered to make themselves available for interviews scheduled on short notice due to unforeseen interview cancellations or other developments. Backlogged applicants may wish to contact their local Asylum Office to inquire about the availability of such a list.

I discussed these ideas, and a few others, here.

Lastly, I want to briefly discuss the report’s findings related to delays obtaining Employment Authorization Documents (“EADs”). The main point of interest here is that the delays are seasonal. For various reasons, EAD applications filed during the summer months take longer. This means–if possible–try to file for or renew your EAD outside the busy season. To me, there is an easy solution to this problem, at least as far as asylum seekers are concerned: USCIS should make the EAD valid for two years instead of one, or better yet, tie the EAD to the asylum application, so it is valid for the duration of the case. I have discussed problems and suggestions for improvement in the EAD process here.

Perhaps it provides some comfort to asylum seekers to know that the U.S. government is trying to reduce the backlog and move their cases along. If you are interested to learn more, take a look at the full report.

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BEGIN TRANSMISSION: 

If you’re reading this, maybe there’s still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end. 

This is how the Immigration Court backlog ends.

This is how the Immigration Court backlog ends.

I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could have—could still—turn out differently. 

What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.

“What was it, then?!” you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity–a black hole, if you will–that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that’s left is me and a few others. We don’t have much time. 

It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didn’t they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration Court—No two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?

Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didn’t think it was a big deal. They were violating the alien’s due process rights, but only a little. And it was for a good cause—efficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen. 

And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single day—November 29, 2019. They claimed this was some sort of “holding” date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind! 

Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came. 

EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didn’t. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose we’ll never know, and anyway, it doesn’t much matter. 

The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn’t only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B’s, TN’s, and L’s, Q’s and R’s, H1-B’s and E’s, all varieties of A’s and J’s, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.

And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path–a black hole. But like I say, if you’re reading this, there’s still hope. There is a simple solution to the Immigration Court backlog. It’s so obvious, that it’s a wonder no one noticed it before. All you have to do is…

ERROR ERROR ERROR END TRANSMISSION 

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If you have a case pending with the Asylum Office and you move, you are supposed to file a change of address (form AR-11) within 10 days. It should be that easy, but of course, these days at the Asylum Office, nothing is easy.

Does this count as a permanent address?

Does this count as a permanent address?

The first problem is that if you move and you file a change of address, it could affect your eligibility for an Employment Authorization Document (“EAD”)–a work permit. Once your case is received by the Asylum Division, the “Asylum Clock” starts to count time. When the Clock reaches 180 days, you are eligible for an EAD (you can mail your EAD application after 150 days, but unless the Clock reaches 180 days, you will not receive the EAD). The problem is that if you do anything to cause a delay in your case, the Clock will stop and you won’t get your EAD, at least not for a long time.

The Clock stops if you fail to appear for an interview or a fingerprint appointment, or if you move your case to a different Asylum Office–all these things are considered applicant-caused delay. Therefore, if you move, and the move results in your case transferring to a different Asylum Office, you may lose your opportunity to get an EAD (to see whether a particular move will cause your case to transfer to a new Asylum Office, you can check here).

In theory, the solution to this problem is easy: Don’t move until after you receive your EAD. In reality, it is not always so simple. People who file for asylum often do not have stable addresses in the United States (they’re refugees after all), and so it can be difficult to maintain a permanent address for long enough to receive the EAD. If at all possible, you should find a long-term address and use that address when you file your case. This will potentially save you a lot of trouble down the line.

For those unlucky few who must move their case to a different asylum office, you have to make a choice: Change your address–as the law requires–and likely lose the EAD (if less than 180 days have passed on the Clock), or violate the law by either keeping the old address (assuming you can still get mail there) or using another address within the jurisdiction of the original asylum office. If you choose to violate the law, you will probably get the EAD, but you could be subject to civil and criminal penalties (a fine and up to 30 days in jail), and it could affect the outcome of your asylum case (“So, Ms. Asylum-Seeker, you lied to us about your address. What else are you lying about?”).

Another problem for people who change Asylum Offices is that the transfer can cause delay (though I’ve seen examples both ways – usually a move makes the case slower, but in other cases, it seems to make the case faster). It may also put you far away from the lawyer who initially prepared your case or other people who are assisting you. There is not much you can do about these things, but they are good to think about before you file the case. 

A third problem occurs when you move for a temporary period of time. I see this a lot: People move to a new city for school or work, but they do not change their “permanent” address. In this case, it is sometimes difficult to know whether to file a change of address form. If you change your address again and again, you will potentially bounce around between different asylum offices and never get an interview. On the other hand, the Asylum Officer might be suspicious if you list your home address in one city, but you are working or studying in a distant city. When my clients make a “temporary” move, I advise them to keep as much of their documents at their “permanent” address as possible: Driver’s license, tax documents, bank accounts, etc. Even so, it is unclear whether we are violating the law by not informing DHS about the temporary move. Indeed, the law itself (INA § 265) provides little guidance. At least in my experience, the Asylum Office is fairly lenient on people who make temporary moves, as long as there is evidence that they have maintained the permanent address.  

As a lawyer, of course, I cannot advise anyone to violate the law by not filing a change of address form. But I would offer that if you are thinking about violating the law in order to get your EAD or keep your case from being transferred, you should talk to a lawyer first about your specific case. It may seem easy enough to not inform USCIS of an address change, but I have seen this play out at asylum interviews, and I recently almost had a big problem for one client who failed to inform USCIS about his change of address (let’s just say I was chastised by the Asylum Officer, which made me feel kind-of bad (Jewish guilt and all that), but fortunately, the client received asylum). 

In the end, the best way to avoid a problem is to file the asylum application using an address where you can remain for a while. In the days before the backlog, when cases only took a few months, this was not difficult. But now, like everything else related to asylum, it ain’t easy.

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Since the surge of asylum seekers arriving at our Southern border began in 2013, the number of people held in family detention has increased dramatically. Men, women (including pregnant women), children, and infants are kept in secure facilities—jails—while their asylum cases are adjudicated. There have been plenty of issues at these facilities: Allegations of physical, sexual, and psychological abuse by guards, inadequate food, suicide attempts. A recently-filed lawsuit claims that people are kept in freezing, overcrowded, and unsanitary cells. Many immigration advocates have been calling for an end to family detention, and recently 33 U.S. Senators signed a letter requesting a halt to the practice.

Powder blue is the new black.

Powder blue is the new black.

On the other side of the debate are those who believe that family detention does not go far enough. They argue that allowing anyone to arrive at the border, request asylum, and then receive entre into the United States is an abuse of the system, a threat to our security, and an inducement to others—many others—to try the same thing. The restrictionists, led by several House Republicans, believe that permitting asylum seekers into the United States is tantamount to an open borders policy: Anyone who wants to come to the U.S. need only say the magic words—“I am seeking asylum”—and they will be granted admission.

Is this, then, our only choice? Either we detain everyone who arrives here until their cases are finally decided, or we throw open our borders to all comers?

I can imagine circumstances where it would be justified to detain arriving asylum seekers–including children–and I think it is worth exploring the possible justifications, and whether they are legitimate. Let’s take a look at some of the reasons for family detention and whether they are justified:

1. Some of the people coming here are dangerous, and since we don’t know who the bad guys are, we should detain everyone – Detaining an asylum seeker (or any arriving alien) who poses a danger to the U.S. is perfectly legitimate. Given how little we know about people seeking entry at the border, it makes sense to be cautious when releasing people from detention. But in the case of detained families, it is highly unlikely that mothers and children present a threat to our country’s safety. For the most part, I don’t think the U.S. government views mothers and children as a security issue, and I don’t see how the widespread detention of such people can be justified on these grounds.

2. The only way to deter migrants from making the risky journey to the U.S. is to stop rewarding them with admission into our country – This argument at least has the pretense of concern for the migrants’ safety. Indeed, a bill floating around the House of Representative, which would make it more difficult for unaccompanied minors to seek asylum in the United States, is called the Protection of Children Act. Of course, the journey from Central America to the U.S. can be dangerous (though the danger is far less than that faced by asylum seekers who cross the Mediterranean to Europe). Despite its superficial good intentions, my feeling is that this argument is simply a pretext to keep people out. If lawmakers really cared about the fate of the young people coming to the U.S., they would ensure that each person receives a complete and fair hearing on the merits of her case.

3. Most Central American asylum seekers have weak cases, and so they will eventually be deported. If we allow them in, they will disappear and not abide by their removal orders – The validity of this argument depends largely on how frequently non-citizens abscond. As usual, we need more data to be sure, but Immigration Court statistics indicate that since 2005, only about 60.9% of minors appear for their court hearings (the appearance rate has improved somewhat in the last few years, and represented juveniles are much more likely to appear (92.5%) than unrepresented (27.5%)). Given that a significant percentage of unaccompanied minors will abscond, this seems to be a legitimate argument in favor of detention.

To make matters worse, many of the asylum seekers coming from Central America have weak cases and—assuming they appear for their hearings—they are likely to be ordered removed. While this argument presents a real challenge to immigration advocates, there is, I think, a more humane (and less expensive) response than jailing families.

Alternatives to detention (“ATD”)–such as electronic monitoring, bond, and intensive supervision (via telephonic or in-person reporting)–are effective ways to improve court-attendance rates. A recent GAO report indicates that between 95 and 99% of aliens on one ATD program reported for their hearings (the report also indicates that more data is necessary to fully evaluate the program). If more resources were shifted from detention to ATD, it would likely become an even more effective method of ensuring aliens’ appearance in court.

Also, while asylum cases from Central America are often legally weak, many of the applicants have a very legitimate fear of persecution in their home countries. The problem is that the fear of harm (from gangs, cartels or domestic partners) does not easily fit within a protected category for asylum. I remember one case where I did a bit of pro bono work: A gang member wanted to date the applicant’s sister. When the parents refused, the gang murdered most of the family. Applicant escaped the massacre and came to the U.S. An Immigration Judge denied asylum because the case did not fit into a protected category. That decision was ultimately reversed (by a federal court), but it illustrates the problem—just because you do not fit neatly into a protected category does not mean that you will be safe in your country. Because of the high stakes involved and the difficulty of demonstrating a “nexus,” asylum cases from Central America often need more—not less—attention from decision-makers and advocates. When applicants are detained and their cases are rushed through the system, it is often impossible to ensure that due process is respected and that we are fulfilling our humanitarian obligations (and sometimes, the results are deadly).

4. If we allow the migrants to enter, it will only encourage others to follow – Our geographic isolation has resulted in relatively few people seeking asylum in our country (compared with, say, Jordan, South Africa or Pakistan). This has allowed us the luxury of an elaborate (i.e., expensive) asylum system. Our system is not designed to handle large numbers of applicants, and indeed, the surge has threatened “the system” in at least two ways: (1) Delays throughout the system have become so interminable that many applicants simply cannot wait for a decision. Some are separated from close family members; others are under great psychological pressure. These delays—measured in years–have proved too much for many applicants, and they have left the country for fates unknown; and (2) The large numbers of arriving aliens have also attracted Congressional attention, and several bills have been introduced that would curtail the rights of asylum applicants.

The question here is whether detaining families and rushing court cases will deter would-be migrants, and thus save “the system.” 

As a general principle, I think it is a bad idea to deny certain asylum seekers due process in order to preserve the system for other asylum seekers. Part of the problem is that we have never had a real debate about who should qualify for asylum. Victims of gang violence and domestic violence are not traditional asylum seekers. Such people qualify for asylum as a result of creative lawyers pushing the boundaries of the law. Perhaps if there had been a rational policy debate about whether such people should qualify for asylum, or whether we should offer them some other type of humanitarian protection, we would not be faced with our current dilemma.

Finally, I doubt that the restrictionists will ever be satisfied with President Obama’s efforts related to border enforcement. Trying to preserve the asylum system by appeasing such people is pointless. While I believe we need to decide, as a country, who we will offer asylum to, I am not convinced that detaining families will convince those who oppose the asylum system to change their minds.  

In the end, while I believe there are reasonable arguments supporting family detention, I am not convinced. Given the alternatives to detention, we can better fulfill our humanitarian obligations and protect our borders without detaining families and children.

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Magna Carta and the Rights of Refugees

by Jason Dzubow on June 9, 2015

in Asylum, Legal Relief

June 15, 2015 marks the 800th anniversary of the Magna Carta, a document signed by King John, which granted certain rights to English noblemen. Although the Magna Carta was executed under duress and was nullified by the Pope a month later (at John’s request), it has become a foundational document of the American Constitutional system (our system, of course, derives from the English system). 

The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.

The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.

What is important about the Magna Carta is not so much the document itself, with its checkered history and its very limited application. Rather, it is the idea of the document that matters: The idea that even the king himself is subject to law and that the People can assert their rights against the sovereign. Indeed, the Magna Carta states

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

In other words, the sovereign will not act against the subject without due process of law.

While apparently the idea of due process did not gain much traction at the time, it was later elevated to importance in England and the United States, and it is now fundamental to our system of justice. We are all (theoretically) entitled to a fair procedure before the government can assert its power against us. 

Of course, it was not always this way. When our country was founded, most people did not enjoy many basic legal rights: Women, minorities, slaves, Native Americans, foreigners, indentured servants, to name the most obvious. Over time, and with much struggle, such individuals gained more legal protections.

But one area where the State retains great power vis-à-vis the individual is in immigration law: The sovereign state determines who will be admitted into the country and who will be excluded. The United States government is allowed to discriminate against arriving aliens. If we don’t want to admit people from China into our country, we don’t have to. If we decide to exclude Muslims, we can do that too. There is no Equal Protection clause for foreigners seeking admission to the U.S.

There are more Constitutional protections available to aliens physically present in the U.S. and in removal (deportation) proceedings, but even these protections are far less than those accorded to criminal defendants. Aliens in removal proceedings do not have a right to an attorney (unless they can afford to hire one). They do not have Miranda rights. They have no right to a jury trial or to see all the evidence against them. They have more limited Fourth Amendment (search and seizure) and Fifth Amendment (self-incrimination) protections than criminal defendants.

But one Constitution right that applies to aliens in removal proceedings is the Due Process clause: Aliens are entitled to a fair procedure, and–if that procedure is violated–they can petition the federal courts for redress. As the Supreme Court has held:

[T]he Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

Because it is one of the few arrows in our quiver, immigration lawyers rely heavily on the Due Process clause, particularly in federal court litigation. The sovereign state has tremendous power to remove non-citizens from U.S. territory, but in doings so, it must comport with due process of law.

In some ways, modern-day immigration law mirrors the early days of domestic law in Great Britain. At the time of the Magna Carta, the king had great power compared to his subjects. Over the centuries, the power of the State has eroded in favor of granting more rights to the People. But this evolution has been far less dramatic in the area of international law and immigration law, where–in the United States–the Executive Branch largely retains plenary power. Perhaps in some more-civilized future, there will exist a system of international law that grants more power to individual immigrants and less power to sovereign nations. I can’t help but think that that would be a good thing.

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