Applying for a Green Card While Asylum Is Pending: Family, Job, Lottery, &tc.

by Jason Dzubow

Aside from winning asylum, probably the most common way that asylum applicants obtain a Green Card is through marriage to a U.S. citizen (I wrote about that here). But there are other ways, and I will discuss some of those today.

As a preliminary manner, we need to talk about two concepts: lawful status and unlawful presence.

A person has lawful status in the United States if she arrives with a visa (or a visa waiver), does not violate the terms of that visa (by, for example, working without authorization), and the period of authorized stay has not yet expired (you can check whether your status has expired here). Such a person is considered “in status.”

The second concept is called “unlawful presence.” If you remain in the United States after your authorized stay has ended, you are unlawfully present. Each day you remain in the U.S. after your status has expired, you accrue one day of unlawful presence. If you have more than 180 days of unlawful presence, and you leave the United States, you are barred from returning for three years. If you have one year or more of unlawful presence, and you leave the U.S., you are barred from returning for 10 years. In attorney-speak, this is known as the 3/10 year bar. It is important to note that this bar only goes into effect if you leave the country. If you remain in the U.S., the 3/10 year bar has no effect. If you are (or will be) subject to the bar, it is still possible to return to the United States, but you need a waiver, (or a provisional waiver), which can be difficult and expensive to obtain.

If one road doesn’t lead to a Green Card, maybe another one will.

For people who entered the U.S. illegally, there are a whole set of other issues. In short, most such people will have to leave the U.S. to get their Green Cards, and this will likely be very difficult, since they may face various bars to returning. People in this situation may be eligible for a provisional waiver, or they may be able to obtain their Green Card under INA § 245(i) (discussed below). If this is you, talk to a lawyer about how to proceed, and make sure the lawyer maps out for you the whole process–how will you get from where you are now to a Green Card? Will you have to leave the U.S.? How will you return?

One last point, assuming you are “in status” and eligible to obtain your Green Card in the United States (called “adjusting status”), you normally must file the application (form I-485) before your lawful status expires. If you do that—even if your status expires while the I-485 is pending—you are eligible to adjust status. If you have to leave the U.S., you would certainly want to talk to a lawyer to be sure you are eligible to leave, get the Green Card, and return. I will discuss leaving the U.S. to get a Green Card in the final post of this series, so stay tuned.

With these preliminaries out of the way, let’s discuss some ways a person with a pending asylum case might obtain a Green Card.

Family Petition: Here is a list of family-based immigration categories (aside from immediate relative categories, which I previous discussed): (1) A Lawful Permanent Resident (“LPR”) can file for a spouse; (2) An LPR can file for a child who is under 21 and unmarried; (3) A U.S. citizen can file for an unmarried child who is over 21 years old; (4) A citizen can file for a child who is married; (5) A citizen can file for a sibling.

If you are in one of the above categories, your family member can file an I-130 petition for you. The different categories have different wait times, which you can see at the U.S. State Department Visa Bulletin. Also, certain countries—Mexico, China, India, and the Philippines—may have extra-long wait times, which you can also see on the Visa Bulletin. Once the date on the Visa Bulletin matches or passes the filing date for the form I-130 (called the “priority date”), you can apply for a Green Card. However, you might need to leave the United States in order to obtain the Green Card.

So how do you know whether you have to leave the U.S. to get your Green Card?

In order to get your Green Card based on one of the above categories without leaving the United States, you need to have entered the U.S. lawfully and still be “in status” (as discussed above). A pending asylum case is not considered “in status” for this purpose. Meaning, you need to have some other lawful status that has not yet expired (F-1 or H1b are two common possibilities). Given the long wait times for many of these categories, few people will be eligible to obtain their Green Cards without leaving the country.

There are exceptions to the general rule. The most common exception is under INA § 245(i). That section of the law states that a person who was physically present in the U.S. by December 20, 2000, and who was the beneficiary (or sometimes, the child of a beneficiary) of a family- or employment-based petition, or Labor Certification petition, filed by April 30, 2001, may be eligible to obtain a Green Card based on one of the above categories without leaving the U.S. If you think you might be eligible under INA § 245(i), talk to a lawyer to be sure. One other possible exception involves people with TPS, but such cases are often complex and you would need to talk to a lawyer about what to do. You can find some basic information about TPS and adjustment of status here.

Employer Petition: There are various types of employment-based petitions for a Green Card, called EB-1 through EB-5 (EB means “employment-based”). Some categories have a waiting period (and certain countries have extra-long waits); others do not. You can see all that here. Also, certain categories allow you to self-sponsor (EB-1, EB-2/National Interest Waiver, and EB-5). Other categories require an employer to sponsor you. Some categories allow for “premium processing,” which means you can expedite the case by paying an additional fee. In general, employment-based cases are complex, and you would probably want to use a lawyer to help you. USCIS has a good overview of the different employment-based categories and the requirements for each.

As with family-based petitions, unless you are “in status” (and a pending asylum case does not count), you would need to leave the U.S. to get your Green Card (this is where premium processing can sometimes come in handy) (also, there is a possible exception to this rule for certain employment-based categories where the period of the violation did not exceed 180 days, or where the period only exceeded 180 days due to a “technical violation” or through no fault of the alien – and potentially, this could include a person with a pending asylum case). Be aware that if you have unlawful presence, you could be barred from returning after you leave, per the 3/10 year bar (discussed above). Finally, employment-based immigrants may benefit from the same exceptions as family-based immigrants: INA §245(i) and perhaps TPS. In short, this can get very complicated, very quickly, so talk to a lawyer if you think you may be eligible to adjust status based on a job.

One word of caution for the EB categories. I have seen a number of instances where the alien hired (and paid) a lawyer to help with an employment-based Green Card, only to learn later that he (the alien) was ineligible to actually get the Green Card. The lawyer successfully completed the first step of the process (the petition or I-140), but the alien was ultimately ineligible to get the Green Card due to the 3/10 year bar, a prior removal order or for some other reason. The attorney knew or should have known this in advance—before the client started spending money on the case—but for whatever reason, did not inform the client. The short answer here: Make sure when you talk to a lawyer, you have her explain the entire process, whether you need to leave the U.S. to get your Green Card, and how you will do that and return. To be extra safe, I would have all this in writing.

Diversity Visa Lottery: If you win the Visa Lottery, and you are “in status,” you may be able to adjust status, as discussed above. If you are no longer “in status,” you would have to leave the U.S. to get your Green Card (unless you meet an exception, such as INA § 245(i), as discussed above). As always, be aware of the 3/10 year bar and any other bars to re-entry. Also, if you plan to leave the U.S. to collect your Green Card overseas, talk to a lawyer about the process, as the Lottery can be tricky, and you do not want to take get stuck outside the country.

Some Other Random Ideas: Aside from the more common ways to obtain a Green Card, there are some more obscure paths as well. Some of these might allow you to obtain a Green Card without leaving the U.S. If you think you might qualify for one of these visas, talk to a lawyer to evaluate your case. For a number of these visa, your best bet might be a non-profit organization, as many of these visas apply to particularly vulnerable people, who are often served by non-profits. A list of such organizations can be found here. Without further ado, here are a few of the lesser-well known paths to a Green Card:

– S Visa: The semi-mythical “snitch visa” for people who cooperate with the government in a criminal or terrorism investigation. I wrote about it here.

– T Visa: This visa may available to victims of “severe trafficking.” You can learn more here.

– U Visa: Victims of certain crimes who assist law enforcement may be eligible for a U visa. Learn more here.

– SIJ Visa: The Special Immigration Juvenile Visa may be available to minors who are abused, abandoned or neglected. If you are under 21 and you are not with a parent or guardian, you may qualify. More information is available here.

VAWA: Under the Violence Against Women Act, certain battered spouses, parents, and children are eligible to file for a Green Card (both men and women can qualify under VAWA). Learn more here.

In the final installment in this series, I will discuss leaving the United States to get your Green Card overseas.

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Stephen Miller Is Not a Hypocrite

by Jason Dzubow

If you follow the news about immigration, you probably know Stephen Miller. He’s a Senior Policy Advisor to President Trump, and he’s supposedly the nefarious driving force behind many of the Administration’s most vicious anti-immigrant policies.

Last week, Dr. David S. Glosser–Mr. Miller’s uncle and a retired neuropsychologist who volunteers with refugees–penned a powerful article refuting his nephew’s raison d’etre: Stephen Miller Is an Immigration Hypocrite. I Know Because I’m His Uncle. The article discusses the immigration history of Mr. Miller’s family, and points out that the policies espoused by Mr. Miller would have prevented his own ancestors from escaping persecution in Europe. Here’s Dr. Glosser’s money shot:

Trump and my nephew both know their immigrant and refugee roots. Yet, they repeat the insults and false accusations of earlier generations against these refugees to make them seem less than human. Trump publicly parades the grieving families of people hurt or killed by migrants, just as the early Nazis dredged up Jewish criminals to frighten and enrage their political base to justify persecution of all Jews. Almost every American family has an immigration story of its own based on flight from war, poverty, famine, persecution, fear or hopelessness. Most of these immigrants became workers, entrepreneurs, scientists and soldiers of America.

Can you guess which one is Stephen Miller?

It’s a powerful piece, in part because of Dr. Glosser’s relationship to Stephen Miller, and in part due to the juxtaposition of these two men. Dr. Glosser speaks from his personal experience dealing with refugees. He sees the story of his parents and grandparents in the stories of modern-day refugees. He has absorbed the lessons of the past, particular with regard to ethnic and religious demonization. Mr. Miller, on the other hand, seems inured to the suffering of his fellow humans and immune to the lessons of history. I have never heard him articulate a fact-based justification for his cruel policies. But he persists in advocating for those policies nevertheless. Mr. Miller’s background and how it influences (or fails to influence) his thinking are important questions, as is the “grim historical irony” of his views.

Here, however, I want to discuss a different question: Is it accurate to call Mr. Miller and the President hypocrites because their policies would have blocked their own ancestors from immigrating to the United States? A second, perhaps more important question, is this: Why does the first question matter?

A hypocrite is a person who pretends to be something that he is not. It’s an epithet often used for politicians who claim to be virtuous and honest, but who, in reality, are the opposite. The word derives from the Greek “hypokrites,” which means “actor,” and there’s a long and rich history of contempt for hypocritical politicians (Dante, for example, relegates the hypocrites to the eight circle of hell, which is pretty close to the bottom).

I don’t think that Mr. Miller or Mr. Trump are hypocrites simply because their immigration policies would have blocked their own ancestors from coming to the U.S. They may be bigots and bullies, whose policies are based more on falsehood than fact, but that is not hypocrisy. Indeed, Mr. Trump has repeatedly articulated his disdain for Muslims, Mexicans, people from “shit-hole countries,” etc., and so the fact that he enacts policies to exclude such people seems perfectly consistent with his world view. He and Mr. Miller may hold ignorant and racist views, but that does not make them hypocrites.

Why does any of this matter?

Aside from the fact that words should be used properly (or as Inigo Montoya might say, “You keep using that word. I do not think it means what you think it means”), it seems wrong to try to limit what people can do by shaming them as hypocrites based on their ancestry. Is the decedent of slave owners a hypocrite if she supports Affirmative Action? Would a Native American be a hypocrite if he became an immigration lawyer? Is the daughter of a candy store owner acting hypocritically if she becomes a dietician? You get my point. We are who we are because of, and in spite of, our progenitors. But I don’t think we should be condemned for the choices we make that are not consistent with the choices they made.

Further, with regards to a complex topic like immigration policy, labels such as “hypocrite” seem inapplicable and designed to shut down–rather than encourage–discussion. Even a person who personally benefited from U.S. refugee policy, for example, has a right to oppose the admission of additional refugees. Economic and political circumstances change, as does the population of refugees seeking admission to our country. Maybe you support admitting some types of refugees (those like you) and oppose admitting others. Such a position is likely based on ignorance of “the other,” but I don’t think it is necessarily hypocritical.

So condemn Mr. Miller for his bigotry and his lies. Call out the irony of his policies, which would have blocked his own ancestors from finding refuge in our country. But don’t call Stephen Miller a hypocrite. Sadly, he is exactly what he purports to be.

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Applying for a Green Card While Asylum Is Pending: Marriage to a U.S. Citizen

by Jason Dzubow

If you add up all the people with pending asylum cases at the Asylum Offices, Immigration Courts, and Board of Immigration Appeals, there are over one million souls waiting in limbo. Many will be waiting for years. During that time, some applicants will inevitably become eligible to obtain legal status in the U.S. through other means. Here, I want to discuss the possibilities for a green card for those with a pending asylum case.

We’ll start with the easiest and most common path to a Green Card for asylum seekers already in the country: Marriage to a United States citizen. In a future post, I will cover other ways asylum seekers might obtain residency in the U.S., such as marriage to a lawful permanent resident, sponsorship by an employer, and the Visa Lottery.

There are plenty of good-looking U.S. citizens just waiting to marry you!

As a preliminary matter, I should say that the rules discussed here apply not only to spouses of U.S. citizens, but also to other “immediate relatives” of U.S. citizens. Immediate relatives are (1) spouses, (2) unmarried children of U.S. citizens where the child is under 21 years old, and (3) parents of U.S. citizens where the U.S. citizen child is over 21 years old.

Second, I should note that under U.S. immigration law, same-sex marriage is allowed, and such couples are treated the same as heterosexual couples for purposes of immigration.

With that out of the way, let’s talk about obtaining a Green Card by marrying a U.S. citizen. Not everyone who marries a citizen is eligible to obtain a Green Card, but most people are. If you entered the country lawfully (usually with a visa), you have not been ordered deported, and you have no serious criminal issues, you are most likely eligible to adjust status (i.e., obtain your Green Card without leaving the U.S.) based on the marriage. Check with a lawyer to be sure you are eligible, as there is no sense starting the processing (and paying a lot of money), if you are not legally able to get your Green Card.

Cases at the Asylum Office: The process of applying for a Green Card varies depending on whether you have a case pending with the Asylum Office or the Immigration Court. Normally, for Asylum Office cases, we file the I-130 (petition for alien relative), the I-485 (application for a Green Card), and accompanying forms and evidence with USCIS. This includes filing for a work permit and Advance Parole, which will allow you to work and travel while the Green Card application is pending (when you pay for the I-485, the fee includes these applications as well).

If you are lucky, USCIS will process the case normally and you will get a Green Card. If the marriage is less than two years old, you will receive a Conditional Permanent Resident card that is valid for two years. Prior to the card’s expiration, you will need to file another form to obtain the lawful permanent resident card. If the marriage is more than two years old, you should receive the lawful permanent resident card, which is valid for 10 years. Once you have the temporary or permanent Green Card, you can inform the Asylum Office and close your case.

Some Green Card applicants are not so lucky, and their cases get delayed. If that happens, we contact the Asylum Office and tell them about the pending Green Card. In some mysterious way, they sometimes help move things along (it may be that the Asylum Office has a file that USCIS needs to adjudicate the marriage case). If that doesn’t work, we can try withdrawing the asylum case to pursue only the Green Card case, but at least in my opinion, it is preferable to keep the asylum case alive until you have the Green Card in hand.

Cases in Immigration Court: The process is different for people in Court (or before the BIA). For one thing, you don’t normally file the I-130 and the I-485 together. Instead, the U.S. citizen spouse files the I-130 petition alone. The purpose of this form is to get USCIS to “approve” the bona fides of the marriage (in other words, to agree that the marriage is true).

In contrast to I-130 cases where the alien is not in Immigration Court, the burden of proof is higher, meaning you need to submit stronger evidence that the marriage is real. Technically, you are asking for a bona fide marriage exemption (USCIS suspects that people in Court may get married in order to avoid deportation, and so such cases are flagged for extra attention). In practice, while USCIS often asks for a formal declaration from the couple that the marriage is bona fide, the standard of evidence is not discernibly different than in “regular” I-130 marriage cases.

Once the I-130 is pending, we typically inform the Court and give them a copy of the I-130, the supporting evidence, and the I-130 receipt. Depending on the stage of the case, we often ask the Immigration Judge for a continuance, so that USCIS has time to process the I-130 petition. If there is a processing delay from USCIS, we sometimes contact the DHS attorney and ask whether they can help facilitate the I-130, which they usually agree to do. This can sometimes magically move things along at USCIS.

Once the I-130 is approved, we inform the Court and can then try one of two paths to get the Green Card. Either we ask the Judge to terminate proceedings so the person can “adjust status” (i.e., obtain a Green Card) with USCIS, or we ask the Immigration Judge to grant the Green Card in court. Often, the Immigration Judge will make this decision for you. But if you have a choice, you should know that there are advantages and disadvantages to each approach.

If you decide to go with USCIS, which is probably the more common choice, the first step is to get the Judge to terminate proceedings (be sure that you get an order “terminating” proceedings, not an order to “administratively close” proceedings, which keeps jurisdiction with the Judge and blocks you from obtaining a Green Card from USCIS). When we tried this in the past, the DHS attorneys and the judges were amenable to termination, as that makes life easier for them. However, in a recent case, the DHS attorney would not agree to terminate proceedings until we completed the I-485 and provided proof that we paid the fee. The problem is, the fee has to be paid in a particular way for cases in Immigration Court. We paid the fee and received the receipt. After that, the case was terminated. We then tried to use the fee receipt to “pay” for the I-485. In the past, USCIS has accepted the fee receipt in lieu of payment, but this time, they refused, and so my client had to pay the fee a second time ($1,225!). Next time I have a case like this, I will ask that proceedings be terminated without the fee receipt, which will hopefully avoid the problem of paying double fees.

Once the case is terminated, the applicant can adjust status with USCIS. It is pretty common to see delays in such cases, where the person was previously in removal proceedings. But ultimately, everyone who does this seems to end up with a Green Card, and it is easy to get a work permit and travel document (Advance Parole) while the case is pending with USCIS.

Alternatively, you can ask the Judge to schedule an Individual Hearing to approve the Green Card in court. This can be faster (depending on the Judge’s schedule), and should avoid the problem of double fees, but it is more difficult to get a work permit while you are waiting (you can try to use the I-485 fee receipt to “pay” for the EAD, but as we found out, that does not always work). Also, you cannot travel outside the U.S. until the Green Card is granted (if a person in Immigration Court leaves the U.S., he has effectively deported himself). Once the Judge approves the Green Card, you will need to make an Info Pass appointment to obtain the physical card.

Some Exceptions: Not everyone who enters the country illegally, or who has a criminal conviction or a deportation order, is ineligible to get a Green Card through marriage to a U.S. citizen. However, if you fall into one of these categories, you would want to talk to a lawyer about your eligibility.

For people who entered illegally, there is a law called INA 245(i) that allows certain people to pay a fine and obtain their Green Card despite the unlawful entry. To qualify, you would have had to be present in the U.S. since at least December 20, 2000 and have had a family member or employer file an immigrant petition or labor certification for you (or possibly a parent) prior to April 30, 2001. There are other requirements too, and so you would want to discuss the specifics of your case with a lawyer. Also, potentially you can leave the U.S. with a provisional waiver and obtain your Green Card overseas. This can also be problematic, especially for asylum seekers who cannot go to the U.S. embassy in their home country, and so you would want to check with a lawyer before trying this option.

For people with a criminal conviction, there are possible “waivers” available. A waiver is basically a form (usually with a steep fee) that asks the government to forgive your crime and allows you to obtain your Green Card. Many waivers require that you have citizen or resident relatives (parent, child or spouse) in the U.S. and that the relative(s) show that they would suffer some type of hardship if you were deported. Again, you would want to talk to a lawyer about this.

People with a deportation order, or some other type of immigration issue (such as the J-1 two-year home residency requirement) might also be eligible to adjust status. But especially for people with a deportation order, it is very important to talk to a lawyer. Part of the Green Card process involves an interview with USCIS, and there have been many recent examples of people with deportation orders being detained by ICE at their I-130 interviews. A lawyer can’t stop you from being detained, but she can evaluate the likelihood of a problem, and help you weigh that risk against the possibility of a successful outcome.

For most asylum seekers who marry a U.S. citizen, the likelihood of obtaining a Green Card is quite high. However, the process can be bureaucratically challenging. For all these reasons, if you can afford a lawyer to get you through the system, that is probably a good idea.

In a future post, I will discuss some other paths to residency for asylum seekers, Stay tuned.

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When the Counter-Terrorism Unit Comes Calling

by Jason Dzubow

My colleague Ruth Dickey recently accompanied one of our clients to an interview with the ICE Counter-Terrorism Unit, after the client was ordered to report for questioning. She writes about her experience here:

ICE has been in the news lately for its role in apprehending migrants, detaining parents, and increasing deportations. For the public, the agency has become synonymous with the current administration’s aggressive approach to enforcement. Rightly or wrongly, ICE agents are portrayed as a boogeymen, and the #AbolishICE hashtag continues to trend ever upwards.

Ruth Dickey, immigration attorney extraordinaire.

What many people do not know is that ICE has two divisions that work with the public: Enforcement and Removal Operations (“ERO”), which is responsible for most of those gut-wrenching daily headlines, and Homeland Security Investigations (“HSI”). HSI is usually seen as a “good guy” agency. Agents track down terrorists and pedophiles, counter human trafficking, and help interdict illegal drugs. They do important work that protects us from transnational criminal organizations and other bad actors. When ICE issues a press release about a success story, it’s usually for something that HSI has done. The fact is, HSI’s work is generally more brag-worthy than anything ERO is doing.

HSI, it turns out, seems a bit embarrassed to be associated with the notorious ERO. Indeed, a group of HSI Special Agents recently published an open letter to DHS Secretary Kirstjen Nielsen requesting to break off from the rest of ICE. In the letter, the agents explain that,

HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security. Furthermore, the perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement.

The agents complain that cities and towns are unwilling to partner with HSI unless they hide the agency’s connection with ICE. It seems that HSI is eager to maintain the image of a law enforcement agency that helps, not hurts. Its association with ICE makes HSI less effective because localities are reluctant to work with HSI agents.

Give this background, we were surprised recently when one of our clients was contacted by HSI’s National Security Group-Counterterrorism and Criminal Exploitation Unit. Our client had come to the United States for an education program. He had been thoroughly vetted prior to arrival, and was bright and ambitious enough to merit a scholarship funded by the U.S. Department of State.

While he was in the U.S., our client was outed as a gay man and he received several death threats from back home. All this took place shortly before his student status ended, and he hired us to file for asylum. His case was filed a few weeks after his classes finished (meaning that he had just fallen out of status). By the time HSI contacted him, our client’s asylum application was already pending, and he had received his receipt.

Our client is law abiding, and doesn’t have so much as a speeding ticket, so it was strange that HSI would have an interest in him, much less the counterterrorism unit.

I attended our client’s HSI interview in a drab office building near the airport. I went there not knowing what to expect. The agents obtained basic biographic information and took out client’s fingerprints. Then the agents told us that they were arresting the client, releasing him, and issuing him a notice to appear in Immigration Court (an NTA). In the ensuing discussion, the agents told us:

  • That the Immigration Court would decide our client’s case more quickly than the Asylum Office (apparently, the agents weren’t familiar with the LIFO policy, which went into effect in January).
  • That sending the case to court was not a waste of resources, since the case might have been referred to court anyway (that is, the agents inappropriately speculated about the merits of the case, even though they seemed to know nothing about it).
  • That our client would be required to attend regular check-ins at ERO to prove he was not a flight risk (despite his strong asylum claim, which he filed voluntarily).
  • Our client had to surrender his passport, and the agents would not give him a receipt or a certified copy of the document. Thus, he had no evidence that his passport was in HSI’s possession (inappropriate and incredibly inconvenient, given that the passport was his only form of ID).
  • That I (the lawyer) should not question the agents’ actions, since their children receive death threats (you would think that these alleged threats might generate some empathy for asylum seekers, but I digress).

Technically, the agents are correct that they have the power to send our client to court since he was already out-of-status. But here, I want to focus on why this approach is inefficient and inhumane.

First, our client already had a pending affirmative asylum application with USCIS at the time of his “arrest.” Such cases are less stressful on the applicant, as they consist of a (theoretically) non-confrontational interview. Contrast this with the adversarial hearing in Immigration Court. Also, under the new LIFO system, most new affirmative asylum cases (like our client’s) will be decided much more quickly than the average asylum case in Court. Further, Asylum Office cases are cheaper for the applicant in terms of lawyer’s fees, since such cases require less attorney time than Court cases.

Second, from the government’s perspective, affirmative asylum cases are less expensive and more efficient than Immigration Court cases. For one thing, the Asylum Office is funded by USCIS user fees (meaning, when you pay a USCIS fee, some of the money goes to the cost of running our affirmative asylum system). Immigration Court cases, on the other hand, are paid for by taxpayers. Court cases also involve more people: The Immigration Judge, the court-appointed interpreter, the Court staff, the DHS attorney, and—in my client’s case—ICE agents. Asylum Office cases involve fewer people, and so are less expensive. Indeed, the raison d’etre for the Asylum Offices is to reduce the burden on Immigration Courts by resolving asylum cases before they land in proceedings.

Third, one main purpose of the Immigration Court is to deport people who have no legal right to be in the United States. This includes people convicted of crimes and people who pose a threat to national security. The more the court system is clogged with cases like our client’s, the less able it will be to deal with people who may be a danger to our country.

So here is my advice for HSI: If you don’t want to be “perceived as targeting undocumented aliens,” then maybe you should try not targeting undocumented aliens, like my client. HSI should consider efficiency and humanity before tossing affirmative asylum applicants into the Immigration Court system merely because they are out of status. If they want to do the right thing, HSI can start by revoking our client’s NTA and allowing the Asylum Office to adjudicate his case.

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