“Legitimate” Asylum Seeker Urges President Trump to Build that Wall!

by Jason Dzubow

Mahir Ahmed really wants you to know that he’s a “legitimate” asylum seeker. Not like those other people who are “deliberately breaking U.S. laws” and “jumping in line” ahead of good people like him. To confront this crisis, which has delayed a decision in his case, Mr. Ahmed declares his support for President Trump’s border wall.

I have some sympathy for Mr. Ahmed ‘s frustration at the slow pace of his case, since many of my clients are similarly delayed. But his desire to slam the door on certain asylum seekers who he considers illegitimate demonstrates a deep ignorance of our asylum system, not to mention a profound arrogance about his own moral standing.

First, let’s take a look at Mr. Ahmed’s “legitimate” asylum case. Mr. Ahmed is from Ethiopia. He was born Muslim, in a “community that is virtually 100 percent Muslim.” After he came to the U.S. (legally!), he converted to Christianity. He writes that his “decision to leave and criticize Islam publicly forced me to resort to asylum.”

Mahir Ahmed offers his new-found Christian love to all asylum seekers. Except those who get in his way.

As an asylum lawyer, I have done apostasy cases from many countries. In some places, apostasy is illegal, and can be punished by death. Ethiopia is not one of those places. In fact, Ethiopia is mostly Christian, and while Mr. Ahmed’s community may be “virtually 100 percent Muslim,” his country is only 34% Muslim. This means internal relocation is a real possibility. If Mr. Ahmed can live safely in some other part of Ethiopia, he is ineligible for asylum. Further, it is unlikely that Mr. Ahmed fears persecution from the Ethiopian authorities, and so if the government can protect him from his Muslim community, he would also be ineligible for asylum. This is not to say that his claim is illegitimate, but an apostate from a country like Iran, Pakistan or Afghanistan might consider Mr. Ahmed to be unfairly blocking up the asylum system when he could potentially live safely in his own country. Let he who is without sin cast the first stone. Or something like that.

Now let’s take a look at some of Mr. Ahmed’s claims about these “law breaking” asylum seekers who have supposedly delayed the decision in his case. In fact, Mr. Ahmed was one of the lucky asylum seekers who received an interview quickly, based on LIFO. The Asylum Officer told him to return two weeks after the interview to collect his decision. Mr. Ahmed was excited: “You can imagine how thrilled I was knowing that no matter what the decision was, it would all be over within two months of filing. No more worrying, wondering, and being in limbo.” But then, the Officer called and informed Mr. Ahmed that he could not pick up the decision after all; it would come by mail. He “was told they have no idea when [the decision would be made] and that the fact that I had legal status might be a factor in the delay since priority is being given to illegal immigrants.” Mr. Ahmed was shocked: “I couldn’t believe that illegal immigrants would be given higher priority than someone who followed the law. It just seemed unfair to me that jumping in line would put you ahead.” More than seven months later, Mr. Ahmed is still waiting for a decision.

After doing a bit of research, Mr. Ahmed found that since the time he filed his case, “more than 460,000 illegal crossings took place” at the Southern border. The “vast majority of the crossers claimed asylum and basically got priority processing over everyone who filed their cases legally, myself included.” “That is exactly why I’m for the border wall,” he writes. “True asylum seekers will still be able to file for asylum at the ports of entry [and] maybe even in their home countries soon,” if a proposed anti-asylum bill becomes law.

There’s a lot to unpack here, and we only have time to address the major points of Mr. Ahmed’s thesis. Let’s start with his data–the 460,000 “illegal crossings.” If you look at his source for this number (Customs and Border Protection or CBP), you will see that this figure represents people “apprehended between points of entry” from October 2018 through April 2019. While Mr. Ahmed writes that the “vast majority” of these border crossers claimed asylum, a review of the latest asylum office data reveals a different story. During this period, about 70,000 people sought credible or reasonable fear interviews, which indicates their desire to apply for asylum at the U.S. border (this is an estimate since the asylum office data is not as current as the CBP data). Thus, even assuming Mr. Ahmed is correct that these “illegal crossers” are jumping ahead of him in line, the number of line jumpers is “only” about 70,000; not 460,000.

Regardless of the statistics, Mr. Ahmed misses a more fundamental point: The law makes no distinction between “legal” and “illegal” asylum seekers. It is legal to arrive at the border (at a point of entry or elsewhere) and seek asylum. It is also legal to enter the U.S. without inspection and file for asylum. The relevant legal statute, INA § 208(a)(1), states that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival….), irrespective of such alien’s status, may apply for asylum.” And so these “illegal immigrants” that so concern Mr. Ahmed have the exact same legal right to file for asylum as he does.

Do “illegal immigrants” jump ahead of the line? Do they get priority over “legal immigrants,” such as Mr. Ahmed? In one sense, they do. When an alien arrives at the border and expresses a fear of return, she receives a credible fear interview or CFI (or if she was previously in the U.S., she receives a reasonable fear interview). This is an initial evaluation of asylum eligibility. Such interviews receive priority over “regular” asylum cases. The large number of CFIs in recent years is a major contributor to the backlog of asylum cases. In Mr. Ahmed’s case, however, he received an interview within a few months of filing. In other words, his case did not fall into the backlog. Thus, unlike other asylum seekers who filed and did not receive a timely interview, Mr. Ahmed’s case was not delayed due to “illegal immigrants” receiving CFIs.

Even for those “regular” asylum seekers who land in the backlog, I do not see how they have much basis to complain about CFIs. This is the system our country created to enforce its humanitarian immigration law. CFIs get priority because those applicants must either be approved and sent to Immigration Court for a full asylum hearing, or denied and deported quickly. If anything, people seeking asylum at the border need more protection than asylum applicants who are already in the U.S., since the latter are in no immediate danger of being returned to a country where they face persecution. As such, it makes sense to adjudicate CFIs first.

Mr. Ahmed also claims that a decision in his case was delayed because USCIS gives priority to “illegal immigrants.” He references a USCIS webpage, which indicates that “longer processing times may be required if you… are currently in valid immigration status.” First of all, this website lists several different reasons for post-interview delay, including “pending security checks” and headquarters review, which are common reasons for post-interview delay (especially, as far as I can tell, for cases involving Muslim–or formerly Muslim–men). Second, the reason a “legal” immigrant’s case may be slower than that of an “illegal” immigrant is because it requires more work to deny such a case. People in legal status receive a detailed Notice of Intent to Deny letter. People who are out of status receive a much less detailed Referral letter. Since it takes more work to create a NOID, it makes sense that such cases takes longer. A final note on this point: I have done many cases for people who are in status, out of status, and who have entered the U.S. illegally. At least in my anecdotal experience, I see no pattern of differences in processing times, and so I doubt that “illegal” cases are processed any faster than “legal” ones.

Based on his analysis, Mr. Ahmed endorses a border wall as a way to help “legitimate” asylum seekers like himself. But this “solution” has no relationship to the problem. If you want to prevent “illegal” aliens from seeking asylum, you need to change the law that allows such people to seek asylum. Perhaps by building a wall and increasing punitive measures, you can deter asylum seekers from coming here. This would help reduce the backlog (at the expense of our nation’s integrity), but you could achieve the same ends (more cheaply) by simply blocking aliens from coming here legally. If fewer people come here, fewer will ask for asylum. Indeed, the Trump Administration is trying to make it more difficult to obtain a visa if you come from a country that tends to produce visa overstays (had it been in place when he came to the U.S., this rule may very well have blocked Mr. Ahmed from coming here).

The bottom line for me is this: Anyone who reaches the U.S. and fears return to his country is a legitimate asylum seeker, and deserves to have his case carefully reviewed. Mr. Ahmed’s effort to distinguish himself from asylum applicants at the Southern border represents a basic misunderstanding of our country’s humanitarian immigration system and the values that that system represents. This is a difficult time for asylum seekers, and sometimes, among desperate people, there is an inclination to attack each other. Mr. Ahmed should resist this temptation. Instead of undermining his fellow asylum seekers, he should stand together with them. By supporting each other, we can improve the asylum system for all. 

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Judge Denise Slavin on the Immigration Courts, the National Association of Immigration Judges, Article I, and the Leadership at EOIR

by Jason Dzubow

Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).

Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?

Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.

I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.

Judge Denise Slavin

I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.

I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.

I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.

Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?

Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.

As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.

I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.

Asylumist: What about lawyers who are bad actors, and who violate the rules?

Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.

Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?

Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.

As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.

Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.

Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?

Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.

As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.

Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?

Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.

Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.

The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.

In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.

Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.

Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?

Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.

As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.

Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.

The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.

These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.

Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.

The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.

Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.

Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?

Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.

The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.

Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.

Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.

Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.

The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.

Asylumist: How would it help if Immigration Courts became Article I courts?

Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.

There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.

If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.

Asylumist: Thank you for talking to me today.

Judge Slavin: Thank you

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The “Myths and Facts” that EOIR Does Not Want You to See

by Jason Dzubow

Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.

I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up. 

EOIR has released a new “Myths vs. Facts” brochure.

This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:

Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more.
Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that  Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.

Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream.
Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.

Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.
Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!

Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget.
Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.

Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration.
Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…

So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime? 

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The Credibility Trap

by Jason Dzubow

One of the most disheartening phrases to hear at an asylum interview is when the Officer says, “Government records indicate that…” This usually means the government has information contradicting the applicant’s testimony. Here are a few examples from a couple recent interviews I attended:

Government records indicate that you applied for a visa from a third country. Can you explain why you said you never applied for any other visas?

Government records indicate that you traveled outside the United States since your first arrival here. Can you explain why you said you had not left the U.S. since that time?

Government records indicate that your neighborhood in Syria was controlled by rebel forces at that time. Can you explain why you said the neighborhood was under government control?

The first two questions were for a Pakistani client. The third question was for an Iraqi. Both applicants were denied and referred to Immigration Court.

If your nickname is “Incredible,” it does not bode well for your asylum case.

As I see it, there are a number of problems with these “gotcha!”-type questions. For one, they are vague, in that the Asylum Officer does not state exactly what information the government has, and it is difficult to adequately respond to a question that you really don’t understand. For another, some of these questions rely on information that is easy for the applicant to forget or overlook. Finally, the “gotcha!” information possessed by the government is not always accurate.

In the first example above, it seems unfair to impugn an applicant’s credibility based on his failure to remember applying for a visa years after the fact. It’s not really a major life event, and if the person did not actually get the visa and visit the country, it’s easy to see how he might forget about filing a visa application (especially since some applications are done online and the person may never even have visited the country’s embassy).

In the other examples above, the government’s information seems to be inaccurate. My Pakistani client swears he never left the U.S. since he first arrived here, and I believe him–he has no reason to lie and his I-94 record, available at the CBP website, does not indicate that he re-entered the country after his initial arrival. In the case of my Iraqi client, she was simply baffled to hear that her neighborhood was controlled by non-government forces. She says she lived in that neighborhood the entire time, and I trust her on-the-ground experience over the government’s “information.” Of course, it is possible that my clients are incorrect, or that–for some indiscernible reason–they are lying, but in these example, I have more confidence in them than I do in the government.

What’s important to understand here is that the United Sates government wants to test an asylum applicant’s credibility, but it has limited means to do so. Asylum Officers can question applicants extensively to try to ferret out lies, but a more effective approach is when the Officer can compare an applicant’s testimony with information the government knows to be true. And the government knows a lot. It knows about every U.S. visa you have ever applied for–and what you told the embassy during the visa application process. It knows about visa applications to other countries (which countries share such information with the U.S., I am not sure, but it is safest to assume that the government knows about any visa application to any country). It knows about applications made to the United Nations. It knows a lot about a person’s travel history. It also knows about your relatives’ travel and visa histories (including ex-spouses). The government knows about any arrests or contacts with U.S. (and perhaps some foreign) law enforcement. Of course, it knows about any other U.S. immigration application made by you or your family members, and it probably has copies of all such applications. The government may know about your employment and education histories, and whether you have used any other names. The government also knows about conditions in your home country, including information about political parties, rebel groups, and terrorist organizations.

In short, Asylum Officers can–and do–gather significant independent evidence about a person’s case. Even where this evidence does not bear a direct relationship to the asylum claim, they can compare that evidence to your testimony and use that to determine whether you are credible (and remember, for the Asylum Office, inconsistent = incredible). If the Asylum Officer determines that your testimony is incredible because, for example, you lied about how you obtained your visa, she could conclude that you are lying about other, more significant, aspects of your case. If that happens, your application for asylum is likely to be denied.

So what do you do? First, don’t lie. Even about small things that you think are insignificant. The Asylum Officer may ask you questions about aspects of your life that seem irrelevant or embarrassing. If that happens, think about why they might be questioning you on that topic. What might they know? Do your best to answer honestly. Don’t guess! If you guess wrong, the Asylum Officer might assume you are lying. If you don’t remember or do not know, tell the officer that you don’t remember or you don’t know.

Also, prior to the interview (ideally, when you prepare the affidavit), think about the times when you (or your family members) had contact with the U.S. government, the UN, or other foreign governments. What did you say on your applications and in your interviews? Did you lie? If so, the time to admit that is in your asylum affidavit and at the asylum interview. You are much better off affirmatively coming clean and explaining any old lies than hoping that the Asylum Officer won’t know about them. Correcting the record in this way does not guarantee that the old lie won’t be used against you, but in most cases, adjudicators appreciate the honesty and they are more likely to forgive a misrepresentation that you bring to their attention than one that they bring up in a “gotcha!” question. In addition, in many cases, the law forgives an asylum applicant for lying, if that lie was necessary for the person to get a visa and escape from her home country. Affirmatively coming clean is usually the safest approach for people who have something negative in their history.

Turning back to the above examples, maybe the best response to the first question would have been for the applicant to think about why the officer was asking him about other visa applications. If he was not sure about his answer, he might have replied, “I don’t remember applying for a visa to a third country, and so I am not sure whether I did or not.” This type of equivocal answer would at least have made it more difficult for the Asylum Officer to impugn the applicant’s credibility.

What about the second two examples, where the government’s information seems to be wrong? Here, I don’t know what the applicants could have done, other than to state that the Asylum Officer’s information is not correct. That is what my clients did, but obviously, it was not enough. The hope now is that, with the cases referred to court, the DHS attorney (the prosecutor) cannot rely on vague accusations–they will have to provide specific evidence of their claims (that client A traveled outside the U.S. or that client B’s neighborhood was controlled by a rebel group). If we are allowed to see the government’s evidence, we can (hopefully) refute it.

In an asylum interview, honest is the best policy. And if you don’t remember or don’t know, it is best to say that. Finally, if there are “issues” in your past, it is best to bring those up affirmatively and explain them in your asylum application. In these ways, you can improve your credibility and increase the likelihood of a favorable outcome in your case.

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Another Salvo in President Trump’s War on Asylum

by Jason Dzubow

In case you haven’t noticed, President Trump is not a fan of asylum seekers. His Administration has taken a number of actions to block asylum seekers from coming to the United States and to reduce legal protections for those who are already here. Now, the President has issued a policy memo instructing the Attorney General and the (acting) Secretary of Homeland Security to propose new regulations and re-arrange resources to further discourage migrants from seeking asylum in the U.S. Let’s take a look at this most recent move, and how it might impact the asylum process.

As a preliminary matter, the news is not all bad. In Section 2 of the memo, the President re-affirms his commitment to the humanitarian immigration system: “It is the policy of the executive branch to manage our humanitarian immigration programs in a safe, orderly manner that provides access to relief or protection from removal from the United States for aliens who qualify, and that promptly denies benefits to and facilitates the removal of those who do not.” While it may not be big news that the Administration will provide “relief or protection… for aliens who qualify,” since failing to do so would violate the law, we have to take our good news where we can find it.

“Pay for asylum? No problem. I’ll have my manservant write you a check whilst I finish my charcuterie platter and valet my Bentley.”

In addition, the thrust of the new proposals seem directed towards migrants arriving at the Mexican border. Indeed, the express purpose of the memo is to address the on-going “crisis” in “our immigration and asylum system… as a consequence of the mass migration of aliens across our southern border.” It appears that some of the coming changes will affect all asylum seekers–as opposed to only those entering from Mexico–but we won’t know for sure until the AG and the DHS Secretary draw up the new regulations.

Finally, it is important to note that none of the changes in the memo have gone into effect–yet. The President has ordered his team to propose regulations within 90 days, and after that, it will likely take additional time to implement those changes (and some may be challenged in court). So for the time being, none of the new rules listed in the memo are operational.

Turning now to the specifics, the memo calls for several significant changes:

First, as I read the memo, it requires all asylum applicants who pass a credible fear interview (an initial evaluation of asylum eligibility) to present their cases before an Immigration Judge. Previously, certain applicants–most notably, minors–could present their cases in the less-confrontational environment of the Asylum Office. Now, it seems, they must present their cases in court.

Second, the memo requires that, “absent exceptional circumstances, all asylum applications adjudicated in immigration court proceedings receive final administrative adjudication, not including administrative appeal, within 180 days of filing.” [please assume there is a long pause here, while I laugh and laugh, and eventually compose myself well enough to continue writing]. This ain’t gonna happen. No way. No how. It’s another iteration of what Judge Paul Wickham Schmidt famously calls “aimless docket reshuffling” or ADS. ADS is the process whereby a new Administration comes in and imposes its particular priorities on the Immigration Court system. The very predictable result of ADS is that cases get re-arranged, judges lose control of their dockets, and most everything gets delayed much longer than if management had just left well-enough alone. The Trump Administration is by no means the first to practice ADS, but they do seem to indulge in it more frequently than prior administrations.

Third, the memo calls for “regulations setting a fee for an asylum application not to exceed the costs of adjudicating the application… and for an initial application for employment authorization for the period an asylum claim is pending.” In other words, the government wants to charge asylum seekers to seek asylum (the affirmative asylum system is currently funded by other immigrants when they pay USCIS fees). How much this fee will be, we don’t yet know, but if the fee is meant to cover the cost of adjudicating the asylum application, it won’t be cheap. Will the fee include the cost of security background checks? Immigration Court proceedings? These processes are expensive, and few asylum seekers can afford to “do business” this way.

The memo does not indicate what happens to people who cannot pay, but we can’t just deport them. Indeed, the Immigration and Nationality Act (section 241(b)(3)) and the Convention Against Torture prohibit the U.S. from returning people to countries where they face certain types of harm (this is separate from, but similar to, the asylum law). Such people apply for relief using the same form (I-589) as asylum applicants. Will the government adjudicate these other types of humanitarian applications where the person is unable to pay for asylum? We don’t know this either.

Perhaps those who cannot afford to pay will be eligible for a fee waiver. That would help, but fee waivers require significant work to complete, and so, at a minimum, many lawyers would raise their fees (since we are paid for our time). This would make it more difficult for asylum seekers to obtain legal counsel.

As I read the memo, it also seems to be calling for a fee for the initial Employment Authorization Document (“EAD”). Currently, the first EAD for an asylum applicant is free. Renewals cost money (currently $410). EADs are valid for two years, and fee waivers are available, so this particular requirement, while harmful to asylum seekers, is probably not that damaging.

Fourth, the memo calls for regulations to “bar aliens who have entered or attempted to enter the United States unlawfully from receiving employment authorization before any applicable application for relief or protection from removal has been granted, and to ensure immediate revocation of employment authorization for aliens who are denied asylum or become subject to a final order of removal.”

Currently, an alien is eligible for an EAD 180 days after she files for asylum (she can submit the application 150 days after she files for asylum). If the new memo is implemented, asylum seekers who “entered or attempted to enter the United States unlawfully”can no longer receive an EAD unless and until their cases are granted. As the memo is written, this provision would probably not apply to an alien who arrived in the U.S. with a visa, but that is not entirely clear. The phrase “entered or attempted to enter the United States unlawfully” is subject to interpretation, and if interpreted broadly, it could block some asylum seekers from obtaining an EAD, even if they entered the U.S. with a visa (for example, if the visa was procured by fraud).

Ironically, if the government succeeds in adjudicating asylum cases within 180 days (and I am skeptical about that), the EAD provision will become less important, since cases will either be granted or denied before the alien is eligible to obtain his EAD. If the case is granted, the alien will be eligible to work immediately, and if it is denied, he presumably (based on this memo) would be ineligible to work while the matter is being appealed. The problem will be for applicants who face long delays, and are unable to work lawfully. How will such people survive the wait?

Finally, the memo calls on the Secretary of Homeland Security to “reprioritize the assignment of immigration officers and any other employees of the Department as the Secretary deems necessary and appropriate to improve the integrity of adjudications of credible and reasonable fear claims, to strengthen the enforcement of the immigration laws, and to ensure compliance with the law by those aliens who have final orders of removal.” It’s unclear (at least to me) what this means, but it seems like another version of ADS. Perhaps the plan is to shift resources away from adjudicating immigration benefits and towards enforcement. While this would certainly cause even more delay for individuals, families, and businesses who rely on USCIS, any boost to the asylum or enforcement sections of DHS seems unlikely. There is just not a lot of cross-over between the different functions of DHS, and so there are only so many resources that can be shifted around. In other words, I doubt the DHS Secretary can arm Naturalization officers and enlist them to chase after aliens with final orders.

President Trump’s memo leaves many unanswered questions, and so we will have to wait for the new regulations to learn the specifics. While some of these changes may be blocked by courts, others will likely go into effect. The result will be a further erosion of our proud tradition as a beacon of hope to those fleeing harm.

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