EOIR Proposes Huge Fee Increase

by Jason Dzubow

EOIR–the Executive Office for Immigration Review–has proposed a fee increase for applications before the Immigration Courts and the Board of Immigration Appeals (“BIA”). The new fees purportedly reflect the cost of adjudicating the various applications that EOIR reviews, and include the following–

  • Increase the fee for Form EOIR-26 (Notice of Appeal from a Decision of an Immigration Judge) from $110 to $975.
  • Increase the fee for Form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer) from $110 to $705.
  • Increase the fee for Form EOIR-40 (Application for Suspension of Deportation) from $100 to $305.
  • Increase the fee for Form EOIR-42A (Application for Cancellation of Removal for Certain Permanent Residents) from $100 to $305.
  • Increase the fee for Form EOIR-42B (Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents) from $100 to $360.
  • Increase the fee for filing a motion to reopen or reconsider with the immigration court from $110 to $145.
  • Increase the fee for filing a motion to reopen or reconsider with the BIA from $110 to $895,

Also, the new fees include a $50 fee for asylum cases filed with the Immigration Court (I wrote about this previously after USCIS proposed a similar fee for asylum cases filed with that agency).

EOIR hopes to revive the tradition of paying your executioner.

As you can see, the new fees are significantly higher than the current fees. EOIR Director James McHenry justifies the fee increase as follows–

The proposed fee increases are marginal in terms of inflation-adjusted dollars and would mitigate the significant taxpayer subsidization of these forms and motions. EOIR is long past due for a review of its fee-based filings, especially as its caseload and costs have increased substantially since 1986.

As usual, Mr. McHenry’s comments reflect his lack of compassion for vulnerable immigrants, not to mention his tenuous grasp of reality. A 900% fee increase for BIA appeals is certainly not “marginal,” and will likely preclude many people from exercising their right to due process of law. Sadly, though, the rights of immigrants have never been a priority or a concern for Mr. McHenry, at least as far as I can tell, and so his comments are hardly surprising.

Now, to be fair, EOIR has not increased fees for 30 years, and so a review of current fees is overdue, and a reasonable fee increase could certainly be justified. Let’s take, for example, the most impactful of the new fees, the fee to appeal an Immigration Court decision to the BIA. The current fee is $110. According to EOIR, had this fee been adjusted for inflation (starting in 1986), it would be $252.63 in today’s dollars. So in that sense, the current fee is less than it should be (whatever that means). The new proposed fee of $975 is nearly nine times the current fee, but “only” about four times the adjusted-for-inflation fee.

Also, a fee waiver may be available for those who need it, using form EOIR-26A. This form (at least in its current iteration) is fairly simple, and seeks information about the applicant’s income and expenses. It’s not clear how much evidence is needed to support the contentions in the form, but given the wide latitude of adjudicators to grant or deny a fee waiver, it seems to me that the wise applicant will include significant supporting evidence (which may require a lot of work). Pursuant to the regulations, EOIR has the “discretion” to grant a fee waiver. However, the regulations also indicate that, “if the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed.” Does this mean that an appeal filed along with a fee waiver will be rejected if the fee waiver is denied? Will EOIR provide some type of notice, so that applicants can raise the fee and pay for their appeal? How much time will EOIR allow to pay the fee? It’s hard to be optimistic about any of this, given that the whopping new fees seem purposely designed to dissuade applicants from pursuing their rights before the Immigration Courts and the BIA.

Finally, EOIR’s main justification for the new fees is that costs for the agency have increased, and raising fees will help cover EOIR’s expenses and protect tax payers–to the tune of about $45 million per year. To come up with their numbers, EOIR completed a study where they looked at who adjudicates the various applications, how long it takes, and how much it costs (taking into account salaries, but not other expenses such as overhead or employee benefits). How accurate is this study? I have no idea. Different appeals, for example, require very different amounts of work. Some appeals are simple; others are complicated. But even assuming the new fees accurately reflect EOIR’s expenses, I think that fee increases of this magnitude are unfair for two main reasons.

First, EOIR’s justification for these fees is a con job. They talk about the expenses of immigrants, but not the contributions of immigrants to our society. The Trump Administration tried this trick at least once before, when it suppressed a study showing that refugees contribute more to our economy than they take, and instead released a distorted study, listing only the costs of helping refugees. You simply can’t separate out the costs of maintaining an immigration system from the benefits we as a nation derive from that system. Yet that is what EOIR is doing here: Director McHenry decries the expenses to the system, but we learn nothing about how immigrants contribute to our economy (and the weight of the evidence indicates that immigration benefits our economy).

Second, in its mission statement, EOIR indicates that it “is committed to providing fair, expeditious, and uniform application of the nation’s immigration laws in all cases.” How can it fulfill this mission if the people before the Immigration Courts and the BIA cannot afford the relief to which they are entitled? To have a functioning legal system, people in our country need access to courts–civil courts, criminal courts, and immigration courts, among others. Our’s is not (and should not be) a nation where you receive only the justice you can afford. Non-citizens who live in our country should not be an exception to this rule. Or, as the indefatigable Paul Wickham Schmidt writes—

Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”

At this stage, the new fees are proposed, but not yet in effect. The public can submit comments about the proposal, and perhaps that will cause EOIR to modify its plan. To submit comments, see page 2 of the proposed rule.

Make no mistake, these proposed fees are another attack on immigrants, justified with half truths, and implemented because immigrants are too vulnerable to fight back. All people of good conscience should continue to resist these terrible policies, which directly impact our non-citizen neighbors, but which, in the end, harm us all. 

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On Luck

by Jason Dzubow

For years, practitioners and academics have complained about inconsistent decisions at the Asylum Offices and the Immigration Courts, and there’s plenty of data to back up this concern. Recently, two sets of cases in my office brought this problem home, and illustrated how luck impacts who receives protection in the U.S. and who does not.

The first set of cases involves two siblings whose uncle was a well-known member of the political opposition. As a result of the uncle’s activities in the early 2000’s, his siblings–including my clients’ father–were all arrested and held in jail for years. Thus, for a good portion of their childhood, my clients grew up without their father. After he was released, the father resumed his life and his children (my clients) eventually came to the United States to study. While they were here, the father was re-arrested for seemingly pretextual reasons. Fearing for their own safety, the siblings filed for asylum. Both cases were referred to Immigration Court, and the siblings hired me for their cases. As far as I could tell, the cases were exactly the same. Neither sibling had engaged in political activity; both cases were based on the relationship with their high-profile uncle and the home government’s persecution of the entire family. Also, we submitted the same evidence in each case and both applicants were found credible. The only difference between the two cases is that the siblings had different Immigration Judges. The first case was before a judge with a 62% denial rate and the second case was before a judge with a 91% denial rate (according to TRAC Immigration). We won the first case and DHS did not appeal,. So in a sense, the second case was different in that one sibling had already been granted asylum. Unfortunately, that was not enough. DHS opposed asylum in the second case (even though they had not appealed the grant in the first case) and the IJ denied relief. The case is currently on appeal.

Sometimes, it may make sense to try to change venue.

The second set of cases involves members of a religious minority who faced persecution by their government and by extremists in their country. These cases were before the Asylum Office. The lead applicants were all related, either as siblings or in-laws, they were members of the same congregation back home, and they faced mostly the same persecution. Also, we submitted similar evidence in each case and all the applicants were deemed credible. Out of four cases in 2019 and 2020, we received three grants and one denial. The main difference between the four lead applicants was that the person who was denied had the strongest case due to past imprisonment in his country. Also, the denied case was the most recent decision, and so we had informed the Asylum Office that other family members were granted asylum on basically the same facts. In the denied case, the Asylum Office found that the applicant suffered past persecution, but found that country conditions had changed, such that the situation was now safe. It seems odd that the Asylum Office would find changed country conditions in one case, but not the others. The referred case is now before an Immigration Court.

So here we have two situations where the applicants presented nearly identical cases, but received different results. Why did this happen? As far as I can tell, the reason is luck: Some adjudicators are more likely to grant asylum than others, and this gives us inconsistent results. Also, some adjudicators seem to be inconsistent from one case to the next, in that their mood at a given moment may influence their decision. And so, the outcome of a case is dependent–at least in part–on the luck of the draw.

This is obviously not a good thing. While I agree with former Chief Immigration Judge MaryBeth Keller that we “don’t want decisions on asylum made according to mathematical formulas as if by computers,” I do think disparities are a serious problem, which should be addressed at the policy level. But what can individuals do about the problem of luck in asylum cases?

In thinking about this question, I am reminded of Reinhold Niebuhr’s Serenity Prayer–

G-d, grant me the serenity to accept the things I cannot change,
Courage to change the things I can,
And wisdom to know the difference.

But how do we know what we can change? Some things are obvious: We can gather the evidence needed for a case, make an appropriate legal argument, try to weed out inconsistencies, prepare testimony beforehand, dress appropriately for court, etc. For those who can afford it, having a competent attorney can make a big difference. For those who cannot afford legal help, securing pro bono (free) assistance is important (though finding pro bono help is often not easy).

Some things are harder to control. For Immigration Court, it is possible to get an idea about the asylum grant rate for your particular judge (for newer judges, data may not be available). If you find your judge has a particularly high denial rate, you might consider moving to a new jurisdiction in order to change venue to a different court, where you will hopefully get a better judge. I rarely recommend this option to my clients, as moving is largely a crap shoot–the IJ may refuse to transfer the case, you may end up with a worse judge despite the move (and a judge who may be “bad” for most applicants might be “good” for certain types of cases), and you may substantially delay the case. Also, of course, moving to a new state is disruptive and expensive. Despite all this, if you have a particularly difficult judge, it may make sense to try to move the case.

Forum shopping is even less useful for cases at the Asylum Office. While there is some data about the overall grant rates for the different offices, there is no information available about the individual Asylum Officers. Even if such data existed, it would be of little value, since you won’t know who your Officer is until the day of the interview, when it is too late to switch. While it is possible to move to a jurisdiction with an “easier” Asylum Office, given all the variables, this often makes little sense. On the other hand, if you have the flexibility to live anywhere, why not live somewhere with a good Asylum Office?

For the most part, then, you are stuck with your adjudicator, but you have a fair bit of control over the case you present. In my experience, it is more productive to focus on the case itself, rather than worry about who will decide that case. In the end, the absence of control is a fact of life for asylum seekers and for us all. Perhaps a quote from another of my favorite theologian–Saint Augustine–provides an appropriate conclusion here: Pray as though everything depends on G-d. Work as though everything depends on you. At least in this way, you cover all your bases.

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The All-or-Nothing Problem

by Jason Dzubow

The debate over immigration–legal and illegal–has become more divisive and seemingly more intractable in the face of the current Administration’s hard-line policies. In a democracy, ideally, people with different views about immigration would talk to each other and reach some type of compromise solution. That is difficult with any issue, but it is particularly problematic when it comes to immigration. There are many reasons for this, but for me, one reason stands out: Immigration is an all-or-nothing proposition.

What I mean is, under the immigration law, either a person gets to stay in the U.S. or they get deported. There is no middle ground. Contrast this with the criminal law. If a person robs a bank, for example, there are a wide range of responses available under our system of justice. The person could be sentenced to jail (for a short time or a long time), or fined (a lot or a little), or given probation. Perhaps the bank robber is a good candidate for rehabilitation and can be placed into a program to obtain appropriate services. In short, a criminal judge has many options, and can–theoretically–tailor a solution to fit the particular circumstances of the case. Immigration Judges have far fewer options.

When a person is placed into Immigration Court, it is for one reason: The U.S. government believes that the person should be deported from the United States. The charging document, called a Notice to Appear (“NTA”), lists the reason(s) why the “respondent” (the non-citizen) can be deported. If you look at the allegations in a typical NTA, you will see: (1) You are not a citizen or national of the United States; (2) You are a citizen and national of country X; (3) You entered the United States on a particular date with a particular visa (or without a visa); (4) You overstayed your visa and no longer have permission to remain in the U.S., or you committed some act (such as a crime) that makes you ineligible to remain in the United States. Sometimes, respondents deny the allegations. Maybe the government got it wrong. Maybe the person is not deportable. Usually, though, the allegations in the NTA are correct, and the respondent concedes removablity, and proffers some type of defense to being removed. Common defenses include asylum, Withholding of Removal, relief under the Torture Convention, Cancellation of Removal, and adjustment of status. There are also other, less common, options. At the end of the day, the respondent will either be granted relief based on one of these defenses, or he will be ordered to leave the United States.

Making a reasonable argument in the immigration debate is like bringing a flower to a gun fight.

Under this legal regime, there is basically no opportunity for compromise. The respondent wins everything or loses everything. One exception (sort of) is the asylum applicant who receives the “lesser relief” of Withholding of Removal or protection under the United Nations Convention Against Torture (“CAT”). An applicant will receive “lesser relief” where she is ineligible for asylum. Committing a crime could render a person ineligible. So could missing the asylum-filing deadline. Asylum is the better form of relief, since asylees can bring immediate family members to the U.S., can travel, and can eventually get their green cards and become U.S. citizens. People who receive Withholding or CAT can stay in the country with a work permit, but they cannot bring their family members here, travel or obtain their green cards or citizenship. This type of “compromise” (if it can be called that) leaves the respondent in a strange limbo: Here, but not here. Unable to feel secure in their status or stable and safe in the U.S. It also seems unfair, at least to me, to “punish” asylum seekers with lesser relief when their only mistake was to file late for asylum. Why should such people be treated the same way as criminals under the asylum law? So for me, if “lesser relief” in an asylum case is a compromise, it is a poorly thought out compromise, which has little basis in equity or justice.

I wonder if there could be another model. Is there a moral middle ground that allows qualified respondents to stay and feel secure here, but that does not completely ignore past immigration misdeeds? In other words, is there a way to satisfy Americans who don’t want the government to grant amnesty to law-breakers, but at the same time, to provide a viable path for respondents seeking relief in Immigration Court?

One could argue–convincingly in my opinion–that the existing immigration system does not give immigrants a pass, even if they do receive relief. For one thing, it’s not cheap to obtain a green card or citizenship ($1,225 and $725, respectively, if you only consider direct fees to the government). Also, most immigration applications (with USCIS or with the Immigration Court) take a long time. If you do receive relief and then want your family members to join you here, that process will usually take additional years. So even in the best case, immigration to the U.S. is not easy and not cheap.

Although respondents pay a price (in money and time), the current immigration system does not provide the type of flexibility available to judges in criminal or civil cases. So what can be done?

One possibility is to impose fines on respondents who violate the immigration law. If relief is granted, the Immigration Judge can determine whether a law was broken, and if so, whether a fine is appropriate, and how much. Relief would then be conditioned on completing payment of the fine. Of course, a major criticism of fines (in civil and criminal cases) is that they are a tax on the poor, and that they prevent people from achieving financial stability. In the asylum context, fines would likely be inappropriate, since it is perfectly lawful for anyone–even people who do not have permission to enter the country–to seek asylum. But in other contexts, fines might make sense.

Another possibility is to impose a waiting or probationary period on people who are granted relief. This already happens in certain cases (and indeed, the green card itself might be viewed as a type of probation, since it can be lost for not following the rules). For example, there are only a limited number of green cards available through Cancellation of Removal, and so if such relief is granted, the applicant usually has to wait (for a year or two) before a green card is available. This is akin to “waiting your turn,” which seems so important to people concerned about immigrants “jumping the line.”

Finally, in some cases, it may be appropriate to impose certain conditions on people who receive relief in court. For example, if an applicant has a prior conviction for DUI, perhaps the Judge could require the applicant to attend AA meetings or complete community service. For people with other criminal issues, maybe anger management classes would be appropriate. In some cases, maybe English classes or job training would be important. Final relief could be contingent on fulfilling your court-imposed obligations.

All these ideas are imperfect and preliminary. Perhaps it’s a fool’s errand to try to satisfy those who oppose “amnesty” for non-citizens. Maybe the lesson of the Trump Administration is that policy is made by imposing our ideas on others and eschewing compromise. Maybe. But for me, I still have hope that we can reach a point where civil discourse and reasonable compromise are possible. And certainly, as the political landscape continues to change (hopefully, at some point, for the better), we should be thinking about ways to re-work our immigration system so that more Americans have a stake in that system and feel that it serves their needs. Giving Immigration Judges more flexibility may be one path towards that goal.

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New Data Shows that Most (But Not All) Asylum Offices Are Getting Tougher

by Jason Dzubow

Last fall, the Asylum Division cancelled its quarterly stakeholder engagement meeting and postponed the release of data about the various Asylum Offices. Now, finally, that information has been released. The news is generally bad (who would have guessed?), but the data contains some bright spots and surprises–as well as a few mysteries. Here, we’ll take a look at the most recent news from our nation’s Asylum Offices.

First, the data. The Asylum Division has released statistics for FY2019, which ended on September 30, 2019. The data shows that despite the Trump Administration’s hostility towards asylum seekers, many people continue to seek protection in the United States–through the fiscal year, a total of 82,807 new affirmative asylum applications were filed (and remember that some of these cases include dependents, so I imagine the total number of people filing for asylum in FY2019 is well over 100,000). Case completions are still not keeping up with new filings, and the overall asylum backlog continues to grow: From 323,389 at the beginning of the fiscal year, to 339,836 at the end. Throughout the year, the number one source country for new asylum cases was Venezuela. China was number two for most of the year, followed by Guatemala, Honduras, El Salvador, and Mexico.

In terms of grant rates, the news is fairly negative, but not uniformly so. As an arbitrary base-line, I will use a post I did in February 2016 about Asylum Office data from the second half of FY2015 (April to September 2015). I calculated the percentage of cases granted at each Asylum Office. In crunching the numbers, I discounted cases that were denied because the applicant failed to appear for an interview, but I included cases that were denied solely because the applicant failed to meet the one-year asylum filing deadline. I’ve made the same calculations for the period April to September 2019, and compared the grant rates for both time periods in the chart below. 

Whenever a lawyer does math: Beware!

As I mentioned, I did not include “no shows” in my data. For this reason, government statistics about the asylum grant rate will be lower than my numbers, since they include people who failed to appear for their interviews. If I had included “no-shows,” the FY2019 grant rate in Arlington would be only 19.5% (instead of 26.5%, as shown in the chart). The New York grant rate would drop to a paltry 7.1%, and the grant rate in San Francisco–the “best” asylum office–would fall to a still-respectable 54.0%. Arguably, it makes sense to include “no shows,” since some people may not appear due to no fault of their own. However, I chose to leave them out, since I suspect most have either found other relief or have left the country, and I don’t think it is useful to evaluate Asylum Offices based on denials where the applicant never appeared for an interview.

One problem with my comparison is that there are more asylum offices today than there were in 2015. The two new offices are Boston and New Orleans. The Boston office was previously a sub-office of Newark, and the New Orleans office was part of the Houston office (though in truth, I am not sure whether all of New Orleans’s jurisdiction was covered by Houston, or whether some was covered by Arlington). To account for this, the first numbers listed for Houston and Newark for FY2019 is the percentage of cases granted in that office. The numbers in parenthesis for Houston and Newark include cases that would have been within the jurisdictions of those offices in FY2015 (i.e., the New Orleans cases are included with Houston and the Boston cases with Newark). Thus, the parentheticals are useful only for comparison with the FY2015 numbers; if you are just interested in the percentage of cases granted in Houston and New Orleans in FY2019, look only at the first number.

The same chart, but here, I have removed one-year bar denials (reminder: Beware!!).

As you can see, there is an overall decline in the grant rate at most offices. In some cases, this decline is quite significant. One office–Houston–bucked the trend and actually granted a higher percentage of cases than in FY2015.

But perhaps things are not quite as bad as they appear. The numbers in the first chart include cases denied solely because the applicant failed to file asylum on time (remember that you are barred from asylum unless you file within one year of arriving in the U.S. or you meet an exception to that rule). In the second chart, I factored out cases that were denied solely because they were untimely (the Asylum Offices have been identifying late-filed cases and interviewing them; unless the applicant overcomes the one-year bar, the case is referred to Immigration Court without considering the merits of the asylum claim; since they are interviewing many such cases, this is pushing overall denial rates up). Comparing the two fiscal years in chart two, the decline in grant rates is much less severe. Indeed, three offices granted a higher percentage of timely-filed cases in FY2019 than in FY2015.

So what’s happening here? Why did grant rates generally decline? Why did some offices improve? What does all this mean for asylum seekers?

First of all, these numbers must be taken with a big grain of salt (and not just because I am an incompetent mathematician). A lot is going on at each Asylum Office. Different offices have different types of cases, including different source countries, greater or fewer numbers of unaccompanied alien children (“UAC”) cases, and different policies in terms of interviewing untimely applicants. As a result, some offices may be interviewing more “difficult” cases, while other offices are interviewing more “easy” cases. Offices that interview many Central American cases, or many UAC cases, for instance, will likely have lower grant rates than other offices. This is because Central American cases and UAC cases are more likely to be denied than many other types of asylum cases. Also, some offices are more aggressive than others in terms of identifying and interviewing untimely asylum cases. Offices that interview more late-filed cases will likely have a higher denial rate than offices that interview fewer late-filed cases.

Despite all this, it is fairly clear that the overall trend is negative. One obvious reason for this is a series of precedential cases and policy changes during the Trump Administration that have made it more difficult for certain asylum seekers, particularly victims of domestic violence and people who fear harm from Central American gangs. In addition–and I think this is probably less of a factor–the leadership at DHS and DOJ has repeatedly expressed hostility towards asylum seekers and encouraged the rank-and-file to identify and deny fraudulent applications.

Finally, as my colleague Victoria Slatton points out, it’s possible that the negative trend is worse than what the numbers above reflect. In FY2015, the Asylum Division gave priority to UAC cases. Since such cases are more likely to be denied, interviewing more of them may have pushed the overall grant rates down. In FY2019, UAC cases were not given priority, meaning that (probably) fewer UACs were interviewed. All things being equal, fewer UAC cases should mean a higher overall approval rate, but that is not what happened at most Asylum Offices. This may mean that more non-UAC cases are being denied today than in FY2015.

As you can see, there are a lot of moving parts, and a lot is going on behind these numbers. In one important sense, though, things have not changed much in the last four years. Strong cases still usually win; weak cases often fail. For asylum seekers (and their lawyers), we can only control so much of the process. Submitting a case that is well prepared, consistent, and supported by evidence will maximize your chances of success. And as the numbers above show, success is still possible even in these difficult times.  

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Expediting Your Case with USCIS

by Jason Dzubow

It’s rare that you’ll find the words “USCIS” and “fast” in the same sentence, unless there’s a “not” in there somewhere. The agency that processes U.S. immigration benefits is not known for its lightning speed. But if you’re in a hurry, it is possible to expedite your case. USCIS does not always agree to expedite requests, but there is usually nothing to lose by trying.

In fact, USCIS has an entire web page devoted to expedite requests. Note that this page is not for asylum cases. I wrote about expediting asylum cases here. Also, the web page does not provide information about expediting cases outside the United States. For refugees (not asylees) outside the U.S., there is some limited information about expediting here. And for humanitarian parole applications for people outside the country, there is some information about expediting available here. Finally, if a case has already been processed by USCIS and is now with the U.S. Department of State, you can find some information about expediting here. Also, you can contact the relevant U.S. Embassy directly to ask for help.

For cases being processed inside the country, the USCIS web page provides guidance for how to make an expedite request. Such cases include Employment Authorization Documents (“EAD”), I-730 petitions, Advance Parole, Refugee Travel Documents, applications for Lawful Permanent Residency (the green card), and applications for citizenship.  

Regular USCIS processing.

USCIS considers all expedite requests on a case-by-case basis, and has sole discretion to decide to grant or deny such a request. This basically means that you are asking USCIS to do you a favor (expedite), and if they refuse, there is usually not much to be done. Also, in making an expedite request, USCIS requires documentation to support your claim. USCIS will not expedite any case where premium processing is available (usually, these are cases involving employment-based applications where you pay an extra fee for fast processing).

USCIS lists the following criteria for expediting a case–

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to: (1) File the benefit request or the expedite request in a reasonable time frame, or (2) Respond to any requests for additional evidence in a reasonably timely manner;
  • Urgent humanitarian reasons;
  • Compelling U.S. government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or
  • Clear USCIS error.

USCIS indicates that “severe financial loss to a company,” means that the company is at risk of failure. For an EAD, you would want to show an equivalent level of difficulty for the individual. Maybe the person will become homeless or be unable to cover medical bills. Whatever the reason, you must show that you are not able to “withstand the temporary financial loss that is the natural result of normal processing times.”

Cases can also be expedited based on “urgent humanitarian reasons.” The most common examples are health problems (mental or physical, for you or a family member) and safety issues (maybe you are petitioning for a relative who is in danger in his home country).

If you can link your case to a “compelling U.S. government interest,” that could be another reason to expedite. Maybe you are involved with U.S. national security work, for example, and you need to expedite on that basis.

Finally, if USCIS has made a clear error, you can ask them to expedite a case to correct the error, or maybe even a subsequent case that has been delayed due to the previous error.

Whatever the reason for the expedite request, you would want to provide documentation: A letter from the doctor or your employer, medical records, evidence that your family members are living in unsafe circumstances (letters from your relatives or others who know about the problem, police reports, medical reports, country condition evidence), evidence of financial hardship, a USCIS letter admitting to their error, etc.

Expedited USCIS processing.

You can make a request to expedite at the time you file your case or anytime after you receive the receipt.

The better approach is probably to make the expedite request when you file. Include a cover letter that clearly indicates that you want to expedite (you can highlight or underline the fact that you are requesting expedition). In the cover letter, include an explanation about why you need to expedite. I prefer to keep my explanations short. In part, this is because I am lazy, but also, I think busy people at USCIS are more likely to read a short and to-the-point explanation than a long, involved explanation. Finally, along with the other evidence required for your application, include documentation supporting your request to expedite. 

If you have already filed your application and now seek to expedite, the best approach is to call USCIS at 800-375-5283 (they also have a TTY line at 800-767-1833). To make this call, you will need the receipt number for your application. It is not so easy to reach a real person, but once you do, USCIS will create a service request and forwarded it to the appropriate office. After that, USCIS may request additional evidence in support of your request.

If, after making the expedite request at the time of filing or later on, you do not receive a timely response, you can call USCIS to follow up.

USCIS will (hopefully) agree to expedite the case. For applications that are completed in one step (EAD, Advance Parole, Refugee Travel Document), you should receive a decision in the case and–if all goes well–the requested document. For applications involving more than one step (an I-730 for a relative abroad, for example), the first step will be expedited, but subsequent steps will not necessarily be expedited. So for the I-730, you might still need to contact the State Department or the appropriate U.S. Embassy in order to keep things moving.

If USCIS denies the expedite request, it does not mean that they will deny the application. It only means that they will not reach a decision in an expedited time-frame (conversely, just because USCIS agrees to expedite a case does not mean that they will approve the application). 

In our office, we sometimes make expedite requests for our clients. It does not always work, but sometimes it does (this always surprises me), and it can save significant time. For asylum seekers and asylees, many of whom have urgent needs, this can be a real life saver. To maximize your chances for success, you need a strong reason to expedite and documents to support your request. For such cases, USCIS will evaluate the request and–sometimes–expedite your case.

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New Immigration Court Statistics: The Good, The Bad, and The Unknown

by Jason Dzubow

The latest data on asylum grant rates in Immigration Court is out, and as expected, the news is not great. Overall asylum grant rates in court continued to decline in FY 2019, but the news is not all bad. Courts adjudicated a record number of asylum cases this past year: 67,406, up from 42,224 last year and 19,779 in FY2015. Many cases are still being granted. Indeed, even though grant rates are down, in absolute numbers, more asylum cases are being approved than ever (this is because the total number of asylum cases adjudicated is way up). Also, the percentage of applicants represented by attorneys continues to climb (slowly). Here, we’ll take a look at the newest data and what it means for asylum applicants.

Let’s start with the bad news (so no one can accuse me of being an optimist). In FY2019, 69% of asylum seekers were denied asylum or other relief in Immigration Court. This continues a negative trend that began in FY2012, when the overall denial rate was at an all time low–only about 42% of asylum applicants were denied in that glorious year. Since then, denial rates have been steadily climbing. Last year (FY2018), the overall denial rate was 65%. Despite the general negative trend, if we break down the reasons behind the high denial rate, perhaps we can find a silver lining.

On a positive note, courts granted asylum to 19,831 people in FY2019. They are pictured above, celebrating.

One factor affecting the overall denial rate was the large number of decisions for cases where the applicant was not represented by an attorney. For unrepresented applicants, the denial rate was 84%. Interestingly, unrepresented cases move much more quickly than represented cases: 45.3% of unrepresented cases that started in FY2019 were resolved in FY2019. In contrast, only 9.7% of represented cases that began in FY2019 have been decided. I suspect that many of the unrepresented cases are for detained applicants, as such cases tend to go much faster than non-detained cases (since the government does not like to pay for incarceration). Also, it may be that some unrepresented applicants who are recent arrivals in the U.S. have their cases adjudicated on an expedited basis.

Another major factor affecting denial rates is country of origin. Four of the top five source countries for asylum seekers are El Salvador, Guatemala, Mexico, and Honduras. Together, these countries represented about 22% of all asylum cases decided in Immigration Court in FY2019. But for various reasons (harsh U.S. laws, difficulty proving nexus), these countries tend to have higher-than-average asylum denial rates–in the range of 80% denials. So if you factor out these four countries, the overall denial rate would be lower (if you are from one of these countries, it is very helpful to talk to a lawyer and think through the most effective way to present your case). You can look up the success rate for people from your country here (this data can be broken down by court, but not by individual judge).

Other factors that contribute to the high denial rate include detained cases and one-year-bar cases, which are both harder to win than non-detained cases and cases filed on time. A final–and unexpected–factor in the high denial rate is the government shut-down of January 2019. During that period, only detained cases were adjudicated, and since such cases are more difficult to win, the denial rate during the shut-down shot up to nearly 75%. This in turn pushed up the overall denial rate for the year.

For asylum seekers who are wondering about the likelihood of success in court, all these variables must be considered. If you are represented by an attorney, if you are not from Central America or Mexico, if you are not detained, and if you file your case on time, the overall asylum denial rate should be significantly better than 69%. So I guess that is good news, sort-of.

But of course, overall denial rates are of little consequence given that grant rates vary by judge (sometimes quite dramatically). To find the name of your Immigration Judge (“IJ”), call 800-898-7180. When the machine answers, follow the instructions and enter your Alien number. You can then press “1” and hear your next court date and–hopefully–the name of your IJ. If your IJ is not listed in the system, it may mean that no one is yet assigned to the case, but you can double check by calling the Immigration Court directly and asking the receptionist whether your case is assigned to a judge. Once you know your judge’s name, you can look here to find asylum denial rates for your particular IJ (for new judges, there may be no data available).

A few points about the individual IJ data: First, it is probably best to look at the most current denial rate (FY2019), since recent (negative) changes in the law may have affected the percentage of cases judges approve. Thus, the older data may be less relevant to a case today. Second, as we discussed, representation rates and country of origin affect overall grant rates. If you scroll to the bottom of the IJ’s page, you can get some idea of the representation rate before that judge, as well as the source countries for asylum seekers that the judge sees. If the IJ adjudicates many unrepresented cases, and/or many cases from Central America and Mexico, this may increase that IJ’s denial rate. Finally, some IJs decide large numbers of detained cases and this would also negatively affect the judge’s grant rate (the data that I see does not list the percentage of detained cases decided by each judge).

Having said all this, I am not sure how useful it is. Unless you move, you have basically no control over who will be your judge. It is better, I think, to focus on what you can control: Gathering evidence and witnesses, preparing your case, and finding a competent attorney. In my experience, most IJs are fair and will listen to your case. The biggest factor in determining whether you win is usually the case itself, and the most productive thing you can do is focus on the variables you can control, and present the strongest case possible.

Finally, I would be remiss not to thank TRAC Immigration for their continued superb work gathering Immigration Court data (often under difficult circumstances). So thank you, TRAC, and keep up the good work.

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Asylum in a Time of War

by Jason Dzubow

With the escalating tension between the U.S. and Iran, DHS has been detaining Iranian Americans and Iranian nationals at the border and questioning them about their ties to Iran, their background, their family members, and their opinion about the Iranian government.

On the one hand, it’s perfectly reasonable to question people entering our country, particularly during wartime (and when was the last time we were not at war?). It’s also reasonable to apply additional scrutiny to people from “enemy nations.” And so, on one level, it makes sense to look more closely at Iranian Americans and Iranian nationals who are seeking entry into the United States.

On the other hand, it’s difficult to accept anything the Trump Administration does without feeling that there is an ulterior motive. At this point, we have been subject to so many lies, in the service of such bad policies, that nothing the Administration does can be viewed at face value. Is there any intelligence that indicates Iran is planning to retaliate by sending agents to our country? Is there any reason to suspect the particular people stopped and questioned at the border? Or does the Administration just want to scare us, in order to further justify its xenophobic policies? Or maybe to distract from the impeachment? There is no way to know, and when you can’t trust what your own government tells you, it is impossible to evaluate whether its actions are warranted.

Enrico Fermi (left) also invented the Photo Bomb.

In any event, here I want to talk about asylum during wartime. I suppose one response to war would be to shut down the border completely, block all nationals from the enemy country from coming to the U.S., and take measures against any of those nationals (or their decedents) living in the United States. We did the latter during the Second World War, when we detained Americans of Japanese decent. Notably, we did not detain Germans or Italians, even though we were also at war with those countries. But what about granting asylum to “enemy aliens” during wartime? Welcoming them to our country, even though we are at war with their homeland?

There certainly is precedent for giving refuge to “enemy aliens.” Probably the most famous examples are the scientists who fled fascism and anti-Semitism during the Second World War. People like Albert Einstein and Enrico Fermi found refuge in the United States and made important contributions to our efforts during the War (I’m not a fan of the Bomb, but I’m glad we got it before the Nazis). Another well-known example is the Cubans who fled Communism after Fidel Castro took power on their native island. For the past six decades, those same Cubans have been fierce opponents of the Castro regime. A third example is the Iranians who came to the United States after the 1979 revolution. While they generally oppose military intervention against their homeland, most Iranian Americans support democracy and human rights in Iran.

I encountered a less well-known example when I lived in Philadelphia in the mid-1990’s. I met an old man at my synagogue who had been a refugee during WWII. He was Jewish, born in Germany. During the 1930’s, he fled to Britain as a refugee. When the War started, he was detained as an enemy alien and shipped (by boat) to Australia. He was stuck down under for a while, until the Brits realized that he spoke German, and so they shipped him all the way back to England to serve in an intelligence unit. He assisted the Allies during the War, and then later immigrated to the United States.

Also, in my job, I meet people every day who are working to bring democracy and human rights to their countries of origin. Once they get their bearings in the U.S., many of my clients work directly or indirectly to assist the United States with diplomacy and national security. My client from Iran, for instance, is a computer expert who works to overcome censorship in his home country (and in other authoritarian countries), so people can access websites blocked by the government. Another client, from Afghanistan, organizes conferences, bringing high-level American and foreign experts together to discuss national security challenges. A third client advocates for democracy in Cambodia, and is regularly in contact with important U.S. government officials. And a number of my clients work for Voice of American (on and off the air), bringing news and promoting American values in their home countries. You get the point: Foreign nationals who have obtained refuge in the United States, often from hostile regimes, are working to advance U.S. interests and to educate U.S. decision-makers and the public, so we can better respond to national security challenges.

And herein lies the rub: How do we obtain the benefits of this expertise while minimizing the risk to our security? The answer, I think, is asylum. Remember, we do not offer asylum to just anyone who fears harm. Asylum is for people who face persecution on account of their race, religion, nationality, political opinion or particular social group. These “protected grounds” reflect our national values, and thus, asylum is basically set up to benefit people who will benefit us. Asylum seekers are also subject to rigorous security background checks. And so if the system is working properly, we will receive refugees from hostile regimes who will be well-vetted and will present minimal risk to our national security, and who are well-positioned to assist our country vis-a-vis their homelands.

Of course, when a conflict exists between our nation and another nation, we must exercise caution in dealing with citizens of the hostile power. We should use all the tools at our disposal to advance our interests and to keep ourselves safe. Asylum is one of those tools. Rather than discard the asylum system during wartime, we should use it as it was intended–to benefit those who support our values, and to benefit ourselves.

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Ten Immigration Predictions for 2020

by Jason Dzubow

As you may have noticed, it’s 2020. I don’t have high hopes that this year will be any better than the last, at least in terms of immigration and asylum, but I do have some predictions for what to expect in the coming annum. While I am no Joan Quigley, I do expect that at least some of my prognostications will come true. If so, remember, you heard it here first. And now, without further ado, here are ten predictions for 2020–

1. All asylum grant letters will now feature a photo of Donald Trump giving you the finger.

2. Every 36 hours, USCIS will issue an updated version of form I-589. The new form will be exactly the same as the old form, except for the edition date. Old versions of the form will not be accepted.

In 2020, DHS will adopt a new logo, which more accurately reflects its current mission.

3. Having re-written The New Collosus, Ken Cuccinelli will set to work on other popular pieces of Americana: America, the Beautiful will be changed to America the Brutal Is Full. Hail to the Chief becomes Sieg Heil to the Chief. And My Country Tis of Thee will become My country, Muslim free, Sweet land for whites only, Of thee I sing.

4. The Board of Immigration Appeals will be replaced by the 1985 Chicago Bears defense.

5. The abbreviation EAD will be changed from “Employment Authorization Document” to “Employment Americans Detest.” The new EAD will only allow non-citizens to work in jobs that Americans won’t do, such as picking watermelons, washing old people, and serving in the Trump Administration.

6. The Correction Corporation of America will issue a new child-friendly cage. Each cage will be equipped with a tin cup for drinking, a week’s supply of gruel, and a doll to play with–Oliver for boys and Annie for girls.

7. To better track aliens in the U.S., the Trump Administration will require all non-citizens to tattoo their A-number to their forearm.

8. Continuing a trend from last year, in 2020, I-589 forms will be rejected unless all boxes are filled. If there is no answer to a question, you must write “n/a”. If “n/a” is not written correctly, the form will be rejected. Incorrect versions of “n/a” include “N/a”, “n\a”, “NA”, and “n/a”.

9. The wait time for an asylum-pending EAD will be increased to one year. After sending the receipt, biometric letter, and approval letter to your correct address, USCIS will mail the card to the wrong address. After it is returned by the post office, you can re-file and start the process over again.

10. In 2020, the fee for asylum will be $50.00. But fear not. For those who do not have the money, the new form I-666 allows USCIS to harvest your organs in lieu of payment. You really didn’t need that extra kidney anyway, did you?

So that’s it. As you can see, it looks like 2020 is shaping up to be a banner year for immigrants and for us all. On the bright side, it’s already January 7th. That means we only have 359 days left to go… 

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The I-730 Process: Bringing Family Members Together

by Jason Dzubow

Winning asylum is becoming harder, but it still happens. One of the great benefits of receiving asylum in the United States is that you can file for certain family members to either come to the United States or–if they are already here but do not have status–obtain their lawful status in our country. The process of filing for a family member can be complicated, but a new resource can help: The I-730 Refugee/Asylee Family Reunification Practice Manual.

The first thing to know about this manual is that it is designed for attorneys and accredited representatives; it is not designed for lay people. In other words, it’s not really designed to assist asylees and refugees themselves. It’s important to understand this, as the manual does include some legal jargon and lots of legal references, which are more easily understood by people with legal training. However, overall, the manual is clear and well-written, and it might also be of use to people who are not represented by attorneys (I fear that the authors might cringe if they read this, but these days, low cost legal help is not easy to find, and for those who cannot secure assistance, the manual could be a real life-saver).

Nothing is better than family reunification. Except family reunification with cake!

The second thing to know about this manual is that it is terrific. It covers all the basics, and provides ideas to assist in many problematic situations. It also doesn’t hurt that it is available for free. So kudos to authors Rebecca R. Schaeffer and Katherine Reynolds, and to the organizations who helped make the manual possible: CLINIC, Church World Service, Elon University, and UNHCR.

In this post, I obviously cannot cover or even summarize the material contained in the family reunification manual. Instead, I want to give an overview of the I-730 process for asylees (as opposed to refugees) and to talk about what to expect when you file an I-730 Asylee Relative Petition for a family member.

First, only spouses and children can benefit from an I-730 petition. For spouses, the marriage must have existed prior to the approval of the asylum application. Also, there are certain restrictions about who is considered a spouse: Proxy marriages and polygamous marriages generally do not count. Children generally include biological children, step-children, adopted children, children born out of wedlock, and even unborn children. The child must have been under 21 at the time the principal’s I-589 was filed. Also, the child must remain unmarried until the I-730 is approved and the child/beneficiary is in the United States. There are exceptions to all these rules–and exceptions to some of the exceptions. The manual covers a number of different situations, but if you are not sure, talk to a lawyer. Aside from spouses and children, no other relatives can benefit from an I-730.

The I-730 cannot be filed until asylum is granted, and it must be filed within two years of the date asylum is approved (again, there are exceptions). A separate I-730 must be filed for each family member.

When we file an I-730 for one of our asylee clients, we generally include proof of asylum status (copy of the approval letter or Immigration Judge’s order), proof of identity (copy of passport or other identity document), evidence of the relationship (copy of marriage certificate or birth certificate), evidence of the beneficiary’s identity (copy of passport), and two passport-style photos of the beneficiary. Depending on the case, evidentiary requirements vary, so talk to a lawyer to be sure.

Beneficiaries who are inside the U.S. will receive an interview at their local USCIS office and, if approved, they will receive asylum status. It is possible to file for a family member who is in the United States even if the person entered the country illegally or overstayed a visa, or if the person has criminal or immigration issues, including people with a final order of removal. However, such cases are complicated, and starting the I-730 process for such a person could cause more harm than good. So if a potential I-730 beneficiary has criminal or immigration issues, it is important to consult with a lawyer before you start the I-730 process.

Where the beneficiary is overseas, USCIS will forward the I-730 (via the National Visa Center) to the appropriate embassy. The embassy will contact the beneficiary about a medical exam and other required evidence (which varies from embassy to embassy), and to schedule an interview. If the case is approved, the beneficiary will receive a travel packet, which acts like a visa and allows her to come to the United States as long as the “visa” is valid. Upon arrival, the person will undergo another inspection at the airport, and–if all goes well–enter the U.S. as an asylee.

As the manual points out, the processing time for an I-730 is not predictable. Most cases where the beneficiary is inside the U.S. take at least a year. Cases where the beneficiary is overseas take longer–a two year wait is not uncommon. In my office, we have seen cases go more quickly, but that is not the norm, especially these days. For cases outside the normal processing time, it is possible to make an inquiry. Pages 57 to 60 of the manual give some helpful advice on that score.

A few final points: For the interview, adult beneficiaries should have some awareness of the principal’s asylum case. Beneficiaries are often not questioned about the principal’s case, but if they are, it is better to know the basics (and if you do not know the answer, don’t guess; say “I don’t know“). Also, any documents not in English that are submitted with the I-730 should include certified English translations. Original documents are generally expected at the interview, so try to make sure the beneficiary has those. Lastly, remember that if a principal asylee becomes a U.S. citizen, or if the relationship ends through death or divorce, and the dependent is still an asylee (as opposed to a lawful permanent resident), the dependent will lose his status (and have to apply for nunc pro tunc asylum). For this reason, it is best for dependents to apply for residency as soon as they are eligible. 

So I guess that is a wrap for 2019. I wanted to end on a positive note–and there is nothing more positive in asylum-land than family reunification. I wish you all a Happy New Year, and I hope to see you in the 2020’s.

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A Light in Dark Times

by Jason Dzubow

In the immortal words of Adam Sandler, “It’s time to celebrate Hanukkah!” But what exactly is Hanukkah, and why is it relevant to us today?

About 22 hundred years ago, a Seleucid king occupied Jerusalem, looted the Temple, and outlawed Judaism. The Seleucids had inherited part of Alexander the Great’s empire, and they were culturally Greek or “Hellenized.” It seems the Seleucids were egged on by a group of assimilated Jews who opposed the more traditional Jews of Jerusalem. As a result of the Seleucid invasion and the sacking of their Temple, the Jewish population revolted, led by Judah Maccabee (a/k/a The Hammer) and his family. The Maccabees ultimately liberated Jerusalem and re-dedicated the Temple. But they found that there was only enough oil to light the eternal flame and keep it burning for one day. It would take eight days to get a new supply of oil. The miracle of Hanukkah is that one day of oil lasted for eight days.

Today, we celebrate Hanukkah by lighting a menorah (candelabra) that holds eight candles, plus an additional candle called the shamash, which is used to light the other eight. On the first night, we light one candle, and on each subsequent night of the holiday, we add another candle until the last night, when we light all eight candles plus the shamash. I suppose to keep up with our Christian neighbors, we also give presents on each night of the holiday (growing up, my presents were usually socks or underwear, but these days, standards have improved!). To remember the oil, we also eat food cooked with oil, primarily latkes (potato pancakes) and sufganiyot (donuts).

Technically, this represents an improper use of Hanukkah candles.

There are a few important rules about the Hanukkah candles. For one, they cannot be used for any purpose other than observing the holiday, so we cannot use them as lights for reading, for example. Also, the menorah is meant to be displayed publicly, and is often placed so that it is visible through a window (being careful not to set the curtains on fire, of course). Also, the miracle of Hanukkah is a funny sort-of thing. The Jewish people defeated the powerful Seleucid empire, cleaned up and restored the Temple, and found enough oil to light the flame for one night. The “miracle” that largely defines the holiday is that G-d kept that flame burning for seven extra nights. Of all the events in the Hanukkah story, keeping the flame lit for an extra week doesn’t seem like such a big deal.

Amidst the celebration of Hanukkah and the deluge of presents, we sometimes give short shrift to the story of our ancestors’ struggle for freedom, and certainly the basis of the holiday is not well known outside the Jewish community. But the lessons of Hanukkah are important, and are relevant to our time.

For one thing, there is the fight itself–a rag tag group of warriors defeated a powerful empire. Perhaps this is the less obvious miracle of Hanukkah, as the victory might not have been possible without divine intervention. But even if we attribute the Maccabees’ success to G-d, they still earned their win through tenacity and faith in Jewish values. It reminds me of the old adage from St. Augustine: Pray like everything depends on G-d; act like everything depends on you. The lesson for our own time (and all times) is clear–despite the powerful forces arrayed against us, we must continue to fight for Justice. That is what our ancestors did, and it requires hard work. It also requires faith: Faith in G-d or humanity, or simply faith that right will ultimately defeat might, as long as we stay true to our cause. Put more eloquently, by Rocky Balboa, the patron saint of Philadelphia–

It ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. How much you can take and keep moving forward. That’s how winning is done!

There is also symbolism in the Hanukkah candles. They provide a light, which reminds us of the eternal flame and the miracle of the oil, of course. But what about the idea that the candle light cannot be used for other activities, like reading? To me, this represents a singularity of purpose. We have to keep our eyes on the prize, as it were. One criticism of the Left is that we tend to lack focus. Go to a rally for immigrant rights and you might see protest signs related to gun control, choice, and gay rights. I get the idea of intersectionality. But I think we need to be better about forming alliances to get things done, even if sometimes those alliances are with people we might otherwise find unpalatable (in typical Jewish fashion, I’ve also argued the other side of this point, but as they say, consistency is the hobgoblin of small minds). 

Finally, there is the idea that the menorah should be displayed in a window. This one makes me nervous. I don’t really want passerby to know that I am Jewish. Maybe it’s because I grew up at a time when the Holocaust dominated our religious school curriculum, but the idea of advertising my religion to the whole neighborhood–which may include neo-Nazis for all I know–seems risky, even irresponsible. Here, though, I think the point is that we should not be afraid to state our values publicly. While there may be some risk in doing so, it is important to stand up for what we believe.

We live at a time when many of our leaders encourage us to hate people perceived as different; to hold “the other” in contempt. They want to divide us with lies and turn us away from the better angels of our nature. It’s easy and self-indulgent to hate, especially when we’ve been given permission to do so. Hanukkah reminds us to keep the light of goodness alive inside ourselves, and to show that light to the world. Living the message of Hanukkah is not easy, and it is not always safe. But it is important. And these days, it is a message we need more than ever.

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The Bureaucracy vs. Asylum Seekers, Part 3: Fees for Asylum

by Jason Dzubow

USCIS recently announced plans to dramatically increase fees for most immigration applications. The fee increase includes a dubious first for the United States–a fee for asylum.

If the rule goes into effect as is, the fee for an affirmative asylum application will be $50.00. For defensive applications (asylum applications filed in Immigration Court), there is no proposed fee–at least not yet. Also, for aliens who are unaccompanied minors, there is no asylum fee. For everyone else, the fee is mandatory and cannot be waived. This means that applicants who cannot come up with the fifty smackers cannot file for asylum. Fees will also go up indirectly, since USCIS will now charge asylum applicants for the initial Employment Authorization Document (“EAD”), which has been free. The proposed fee for an EAD is $490.00. People who are granted asylum will still receive their first EAD for free.

USCIS offers a number of justifications for the new fee. First, DHS has the statutory authority to charge a fee for asylum, as long as “Such fees [do] not exceed the Attorney General’s costs in adjudicating the applications.” See INA § 208(d)(3). The $50.00 fee is well below the cost of adjudicating an asylum application, and so DHS posits that they are within their power to impose the fee.

“I’ll save you! Bur first, I need my fifty bucks.”

Second, DHS notes that other countries which are party to the Refugee Convention, charge comparable fees. This is technically true. Of the 147 countries that have signed the treaty, three (Australia, Fiji, and Iran) charge a similar fee for asylum. Of those three countries, however, two (Fiji and Iran) allow applicants to waive the fee.

Third, DHS apparently wants to cut other immigrants a break. Currently, asylum is funded through USCIS user fees, so when an applicant pays for her green card, part of that fee supports the asylum system. DHS claims that the agency “is exploring ways to alleviate the pressure that the asylum workload places on the administration of other immigration benefits.” DHS calculates that “the proposed $50 fee for Form I-589 mitigates the proposed fee increase of other immigration benefit requests by approximately $5 or $10.” Looked at another way, the asylum fee will “generate an estimated $8.15 million in annual revenue” for USCIS. This represents less than 0.2% of total fees earned by USCIS from users.

Fourth, DHS views the fee as another way to “discourage frivolous filings.” Of course, this is the justification for every action taken by DHS (and other agencies) against asylum seekers, and to me, it is not at all convincing. If our goal is to administer the system fairly, we should look for ways to protect legitimate asylum seekers and discourage fraudulent claims. The Trump Administration’s only solution here is to punish every asylum seeker equally, as if they are all fraudsters. This approach defeats the whole purpose of having an asylum law (or any law) and should be antithetical to any country that values Justice.

Why is the fee mandatory? According to the agency, “If DHS permits fee waiver requests, it assumes that the costs of administering the fee waiver request review process may exceed the revenue, thereby offsetting any cost recovery achieved from the fee.” In other words, the cost of adjudicating fee waivers will exceed the revenue generated by the asylum fee. Hence, everyone–with the exception of unaccompanied minors and people in Immigration Court–must pay the fee.

What about those who cannot afford the fee? Or those who need more than a year to raise the money (remember, if an asylum application is not filed within one year of the alien’s arrival in the U.S., the alien is generally barred from asylum)? “DHS acknowledges that an alien who is not placed in removal proceedings will have no means of applying for recognition as a person in need of refugee protection and its attendant benefits such as asylum or withholding-based employment authorization, travel documents, or documentation of immigration status, if they do not pay the proposed $50 fee.” However, DHS believes that the $50.00 fee is “not… so high as to be unaffordable to even an indigent alien.” For that same reason, DHS would not consider the inability to raise the fee within a year of arrival as an exception to the one-year asylum bar.

What to make of all this? On the one hand, the fee is not so great that many people will be blocked from filing for asylum. Unlike refugees who are waiting (mostly in vain) overseas for resettlement and who are often without any resources, affirmative asylum seekers have managed to reach the U.S. on their own. Whether they paid for a plane ticket or a smuggler, or just traveled here by themselves, most such people needed resources to get here, and probably have the money to pay $50.00 to file for asylum.

On the other hand, to me at least, DHS’s justifications ring hollow. Is the agency really so concerned about saving other immigrants five or ten bucks per form? Do they really think charging $50.00 will somehow discourage fraudulent applicants? Is the $8.15 million in estimated revenue really needed, especially given the $4.69 billion that USCIS expects to earn from all user fees? And, by the way, according to DHS’s own estimate, user fees will exceed costs by over $42 million per year. Heck, with a surplus like that, DHS could actually pay each asylum seeker $250.00 as a bonus for joining our great country!

I simply don’t believe that this new fee is about saving money or discouraging fraud. Instead, I think it’s meant to send yet another message to asylum seekers: You are not welcome here. It’s petty and it’s mean. It’s kicking people who are already down. I suspect it’s also designed to harm non-profits, some of which will pay these new fees for their clients. In short, the Trump Administration is doing everything it can to stop asylum seekers from coming to our country. This new fee is just one more piece of that effort. 

If you’d like to submit a comment to the U.S. government about the new fee for asylum, or the new rules to delay and block work permits for asylum seekers, you can do so here (enter “asylum” in the search bar and you will find a link indicating where to submit your comment – comments can be submitted anonymously).

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The Bureaucracy vs. Asylum Seekers, Part 2: Delaying and Blocking Work Permits

by Jason Dzubow

The law governing asylum states that, “An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General.” Up until now, the regulations implementing this law allowed most asylum applicants to file for their Employment Authorization Document (“EAD”) 150 days after their asylum application was received by the U.S. government. Now, DHS has proposed regulations to delay EADs for all new applicants and to block EADs for some people.

Probably the most significant proposed change would be to increase the wait time before an asylum applicant can file for an EAD–from 150 days after the asylum form is filed to 365 days (and then the applicant would have to wait a few more months while USCIS processes the EAD). The rationale proffered by the government for delaying the EAD is to deter aliens from filing “frivolous, fraudulent, or otherwise non-meritorious asylum applications to obtain employment authorization.” DHS also wants to reduce incentives for aliens to enter the country illegally and to deliberately delay their cases in order to gain more time in the U.S. As with many recent changes to asylum procedures, there is little evidence that asylum seekers are coming here for work permits, or that most do not have a real fear of harm in their home countries. Also, there is already a significant waiting period to obtain an EAD, and of course further delaying the EAD will impact meritorious and non-meritorious applicants alike.

According to DHS, the length of this new waiting period is not arbitrary, rather–

The 365-day period was based on the average of the current processing times for asylum applications which can range anywhere from six months to 2 years, before there is an initial decision…

DHS envisions asylum seekers enjoying a year of leisure before their EAD arrives.

Huh? So asylum applicants are being punished because the U.S. government–largely through mismanagement–has a slow asylum system? If the average wait time increases to 10 years, must asylum applicants wait a decade before they can file for their EADs. Maybe a better method to calculate the wait time is to figure out how long asylum applicants can survive without jobs. Will applicants starve to death in three weeks? Six months? A year? I suppose from DHS’s perspective, if applicants are dropping dead, that will at least reduce the backlog.

Another significant change in the proposed rule is to deny an EAD to any applicant who files for asylum more than one year after arriving in the U.S. Unlike the 365-day rule, this proposal applies to all asylum applicants, not just to people who file after the rule goes into effect. And so if you filed for asylum after one year in the U.S., and you currently have an EAD, USCIS might refuse to renew it when the time comes. Such unlucky soles would only become eligible for an EAD if an Asylum Officer or an Immigration Judge “determines that an exception to the statutory requirement to file for asylum within one year applies.” Of course, by the time that happens, the case will already be decided, and so the large majority of late filers will not get an EAD until–and unless–they win asylum.

A third important proposed change applies to people who entered or attempted to enter the United States unlawfully. Under the new regulation, such people would not be entitled to an EAD at all. This provision seems to apply prospectively, meaning that if you entered the country illegally and you already have an EAD, you should be able to renew it. Asylum seekers who arrived unlawfully (or who attempted to enter unlawfully) and who file after the rule goes into effect will not be eligible for an EAD.

Finally, asylum seekers with a criminal conviction that is an aggravated felony under immigration law, a felony under state law, a serious non-political crime overseas, or related to domestic violence, child abuse or neglect, or driving under the influence of alcohol or drugs, will be barred from obtaining an EAD. This rule applies even to people who already have an EAD, and so some asylum seekers with criminal convictions may be unable to renew their work permits. More disturbing to those who care about such things as due process of law, asylum applicants who have “unresolved domestic charges or arrests” for crimes involving domestic violence, child abuse or neglect, illegal drugs, and DUI can be refused an EAD unless USCIS determines that the EAD applicant is entitled to a favorable exercise of discretion. So much for innocent until proven guilty.

Another change in the rule, which will only affect a limited number of people, is that DHS proposes to eliminate recommended approvals in asylum cases. Applicants receive a recommended approval where they are deemed to qualify for asylum, but background checks are not yet complete. Once a person received a recommended approval, she becomes immediately eligible for an EAD, and so by eliminating recommended approvals, some applicants will have to wait longer for their EADs.

One significant change that is a bit buried in the new rule is that affirmative asylum applicants will now be required to submit all their evidence 14 days before their interview. The problem here is that over 330,000 people are waiting for interviews, and many of those people will have to supplement and update their applications before the interview. The Asylum Office usually only gives two or three weeks notice of an interview, and so if evidence is required 14 days early, there will be little or no time to submit that evidence after the interview is scheduled. This will force applicants to reschedule their interviews and will cause further chaos at the Asylum Offices. Also, this new rules seems utterly pointless, since most Asylum Officers do not have time to review documents until the day of the interview, or maybe a day or two before, at best. So like other parts of this new rule, the 14-day provision seems designed for one purpose only–to make it more difficult for asylum seekers to present their cases.

For the budget conscious, an interesting element of the proposed rule is the summary of its costs. According to DHS, the estimated maximum cost of the new rule to our nation’s economy is $4.4 billion annually, and a loss of tax revenue to the federal government of up to $683 million per year. The regulation notes that if other workers can be found to fill the jobs currently held by asylum seekers, the loss would be less–as low as zero, if all lost jobs are filled. The idea that all the jobs held by asylum seekers would be filled by American workers seems dubious, especially given that our economy is currently close to full employment, and so this new regulation will likely have a significant negative impact on our nation’s economy. This cost estimate only considers affirmative asylum applicants; not defensive applicants, and so the cost will likely be more than the estimate predicts.

There is also another cost, which DHS does not seem to consider here. If asylum seekers are not permitted to work, their overall economic situation will be worse (duh!), and so if they are ultimately granted asylum, they will be much further behind economically than if they had been able to work while they were waiting for their cases to be processed. I imagine that this economic handicap will remain long after an applicant’s case is granted. Also, since an EAD allows asylum applicants to study at university, delaying or blocking the applicant’s EAD will put them further behind in terms of their education, and cause universities to lose tuition fees.

So to sum up, what we have here are new regulations that will cost our government money, and which will harm many asylum seekers and reduce their ability to contribute to our country. Rather than assist asylum seekers who have come to us for help, the Trump Administration is so intent on deterring them, that it is willing to harm all of us in the process.

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The Future Has Arrived

by Jason Dzubow

Way back in the summer of 2015, immigration lawyers started to notice that EOIR was scheduling hundreds, maybe thousands, of Immigration Court cases for a single date: November 29, 2019. Supposedly, this was a holding date, and all those cases would be rescheduled. Now, November 29, 2019 is upon us. As such, I thought it might be nice to re-visit my blog post from back in 2015, when all this seemed a long way off (plus, it being Thanksgiving, I wasn’t much in the mood to write something new). Have things changed since 2015? You bet. But mostly for the worse, as there are now over one million cases in the Immigration Court backlog (in contrast to 2015, when there were about 456,000 cases in the backlog). Anyway, without further ado, here is my blog post from July 1, 2015–

Postcard from the Apocalypse: November 29, 2019

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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The Bureaucracy vs. Asylum Seekers, Part 1: Rejected I-589 Forms

by Jason Dzubow

If you’ve filed an asylum application recently, you may have noticed that receipts are taking longer, and many applications are being rejected for seemingly minor omissions. What’s going on?

Starting about a month ago, our office has had a number of new asylum applications returned to us after a longer-than-expected delay. The reason is because we left certain boxes on the form I-589 blank. Mind you, the boxes that we left blank were boxes where there was no answer–for example, for a client without a middle name, we left the “middle name” box blank. In another case, on the signature page where the form asks for your name in your native alphabet, we left it blank because the client’s native alphabet is the same as the English alphabet, which was already included in an adjacent box. In other words, things we’ve been doing for years with no problem have now resulted in applications being rejected. The issue seems to be that USCIS has changed its practice and now requires all boxes to be filled. This would have been fine, if they had told us in advance. They did not. As a result, many people’s cases are being rejected and delayed, we have to incur extra expenses and wasted time, and people who have one-year bar issues now have some extra explaining to do. All because USCIS changed its policy without providing advance notice.

Except for that lack of notice, this change is not a big deal. If you are filing a new case, and you have a box on the form that will be left blank, you should write “N/A” for not applicable. If you have no middle name, or no apartment number, or no social security number, do not leave the box blank, write N/A. If you have three siblings, but the form has room for four, write N/A in the fourth box. If you’ve only entered the U.S. one time, and the form provides room for three entries, write N/A in the remaining two spaces. For questions such as the ones about your spouse and children, if you check that you do not have a spouse or child, I do not think you need to write N/A in every box (though given USCIS’s capriciousness, it couldn’t hurt). Make sure you check all the “yes” or “no” boxes on pages 5 through 8 of the form, and if you check “yes,” provide an explanation in the corresponding space. Also, on the signature page of the I-589, there are some check boxes that people often overlook. Failure to check those boxes can also result in a rejection.

The Asylum Office’s newest employee: “You forgot to check a box? No refuge for you!”

So why did USCIS implement this new policy? And why didn’t they tell us in advance?

Giving USCIS the benefit of the doubt, it makes sense that the I-589 form is 100% complete. Blank spaces–especially for information like names, Alien number, and family members–can create issues for the case. Assuming–and perhaps it is a big assumption–that USCIS does security checks in advance, this information is necessary to implement a complete check. Also, if the Asylum Officer researches the case in advance of the interview (again, another big assumption), it is helpful to have all pertinent information. In short, I think it is fair to require that applicants complete the form and answer all questions, and this includes writing “N/A” where a particular question does not apply.

That said, the problem here is not that USCIS now requires a complete form. The problem is that USCIS changed the definition of “complete” without telling us in advance, and has rejected scores of applications that do not meet the new requirements. In my office alone, we’ve had about six or seven cases rejected in the last three weeks. This is probably more cases than we’ve had rejected in the previous 15 years of my practice as an asylum lawyer. And I am not alone. Many other attorneys are commenting on our list serves about the same issue.

Now, to be completely fair, USCIS did quietly post something on their website–without any sort of announcement–in maybe late September, but by then, it was too late for applications that had already been submitted. If you look at their website today, and check the section “Where to File,” and then scroll all the way to the bottom, you will find this warning–

We will not accept your Form I-589 if you leave any fields blank. You must provide a response to all questions on the form, even if the response is “none,” “unknown” or “n/a.”  We will not accept a Form I-589 that is missing the explanation of why you are applying for asylum or that is missing any addendums that you reference in your application.

Don’t forget to sign your form!  We will reject any unsigned form.

Why this information is listed under “Where to File” and why it is not more prominently displayed, I do not know (similar information can be found on page 5 of the I-589 instructions). But the decision to start rejecting cases that do not meet this new standard shows–at best–a complete indifference to the plight of asylum seekers and to their right to a fair process.

For those who have not had an asylum application rejected, it may be difficult to understand how upsetting it is. Preparing the application is time-consuming and can be very stressful, especially for people who are already traumatized. When the application is returned, it is often re-arranged and contains numerous USCIS stamps and hand-written information. There is also a two-page Notice of Deficiency, which usually (but not always) explains what needs to be corrected. In the most recent incidents, it took USCIS six or seven weeks to return the errant forms. So applicants, who thought that their cases were pending, their Asylum Clocks had started, and their status in the U.S. was safe, are learning after a month and a half, that none of those things has happened and they have to start over again.

So if your asylum application has been rejected, what do you do? The short answer is, read the Notice of Deficiency, make the required changes, and re-submit the form. But also, double check all the boxes on the form, and if there are any that you left blank, make sure to fill those boxes with N/A, none, unknown, or whatever you think appropriate. Don’t leave them blank. When we re-submit a rejected application, we include a copy of the Notice of Deficiency. Finally, when you re-submit the application, keep a copy of the Notice of Deficiency and any pages that were stamped by USCIS (usually, USCIS stamps the first page of the I-589 with the date the form was received). This provides evidence that the application was filed and rejected. It is important to have such evidence, especially in cases where the one-year asylum filing deadline is an issue, but it is good to have it for any case, as you never know when you might need such proof. Also, the American Immigration Lawyer’s Association is tracking such cases in order to communicate the problem to USCIS. If you would like to be include in this effort, please email me.

What about the situation where the I-589 was initially filed within one year of your arrival in the U.S., but now the case has to be re-filed after the one-year deadline? Not to worry; the regulations provide an exception to the one-year bar where–

The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter.

8 C.F.R. § 208.4(a)(5)(v). The key here is that the application must be re-filed within a reasonable period of time after it is returned to you. To prove that, you need a copy of I-589 stamped by USCIS and the Notice of Deficiency, which provide the initial filing date, and you need proof that the application was re-filed within a reasonable period of time. For that, you need the USCIS mailing envelope and the Notice of Deficiency, which both show when the form was returned to you. For example, we received a returned I-589 on November 7 (after the one year bar), but the stamp on the I-589 indicates September 24 (before the one year bar). We did not cause the delay between September 24 and November 7; USCIS caused that delay. Since we have the Notice of Deficiency and the USCIS mailing envelope, we can prove that that portion of the delay was not our fault. We re-submitted the I-589 on November 8, and we have a copy of our mailing receipt. Thus, our client should be protected in terms of the one-year bar, since we only caused one day of delay, which is certainly a “reasonable” period of time to re-file a rejected application. How long is a “reasonable period” of time to re-file? There is no specific definition, and so the sooner you re-file, the better, but if it takes you a few weeks (maybe to consult with a lawyer), that should be fine.

What about the Asylum Clock? Unfortunately, as I understand the clock, it will not start running until the application is received and accepted. And so in the above example, my client’s clock will start running on November 9 (assuming USCIS accepts the application this time); it will not start on September 24, when the I-589 was initially received (once 150 days passes on the Asylum Clock, an applicant can apply for a work permit).

I think that is enough for now. This recent incident of USCIS using the asylum bureaucracy–which is meant to facilitate asylum applications–as a weapon against asylum seekers is not an isolated event. In a future post, I will discuss USCIS’s plans to raise filing fees and delay or block work permits for future asylum seekers. Stay tuned for more good news…

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What Is the Asylum Division Hiding?

by Jason Dzubow

In an unexpected–but perhaps not surprising–move, the Asylum Division has canceled its Quarterly Engagement Meeting, which had been scheduled for November 14, 2019. This is the meeting where headquarters staff from the Asylum Division give updates and answer questions from stakeholders, such as non-profit organizations and lawyers like me.

Over the years, I’ve attended a number of these Engagement Meetings. They were helpful for several reasons. Most obviously, Asylum Division leaders answered written questions, which had to be submitted in advance, and also allowed us to ask questions and raise issues at the meetings themselves. The meetings provided an opportunity for us to meet Asylum Division leaders and for them to meet us. This type of human-to-human interaction is beneficial to both sides. We were able to see “the bureaucracy” and better understand their concerns, and they could directly hear from their constituents. As I see it, this type of communication and transparency is appropriate in any functioning democracy.

But now things have changed. And while it is disappointing that the Engagement Meeting has been canceled, it is not really surprising. The Trump Administration has been closing avenues of communication between government agencies and various stakeholders for some time. For example, EOIR–the Executive Office for Immigration Review–the office that oversees that nation’s Immigration Courts, has dramatically reduced the ability of its employees to communicate with people outside the agency. In my interview with the former Chief Immigration Judge, she notes that, “This change was touted as a way to streamline the Agency’s messaging system, but cutting off… communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.” EOIR is also refusing to release data about its operations–data that was routinely made public in the past, and which helped us better understand how the system was operating. In addition, EOIR, DHS, and the Asylum Division have all been blocking their employees from speaking publicly, even to law students and at professional conferences. All this is harmful to students and professionals, who benefit from contact with public servants, but it is detrimental to the agencies as well, since they cannot hear directly from the people they serve or explain themselves to the advocacy community. Worse, their ability to recruit talented employees is hampered if they cannot communicate directly with people outside the government.

A live view of the Asylum Division meeting not taking place.

So as you can see, the Asylum Division’s decision to cancel the Engagement Meeting fits a wider pattern, but there may be other reasons behind the cancellation as well. The most obvious is a recent change in leadership. The long-time Director of the Asylum Division, John Lafferty, who normally chaired the Engagement Meetings, was forced out a few months ago. I met Mr. Lafferty several times, and I had (and still have) a high opinion of him: He tried to follow the law in the face of the Trump Administration’s assault on due process. Some lawyers I know felt he bent too far towards accommodating the Administration’s policies, but I saw him walking a difficult line and doing his duty to his superiors and to the law. He managed to keep the Asylum Division operating (more or less) despite the Administration’s machinations against it. According to news reports, Mr. Lafferty’s removal has further damaged morale at his agency–

The reassignment of John Lafferty… has caused consternation and fear among asylum officers and other USCIS officials, who worry that the administration is dead set on pushing forward with policies that may not always be legal or adequately researched…. “This is shocking and distressing news for the civil servants in the Asylum Division,” said [an unnamed] USCIS official. “A very sad day where an incredibly sophisticated, highly dedicated, and ethical leader is being removed from an important position in the agency.”

The new Director of the Asylum Division is Andrew Davidson, the former deputy associate director for USCIS’s Fraud Detection and National Security Directorate, the department that leads the agency’s “efforts to combat fraud, detect national security and public safety threats, and maximize law enforcement and Intelligence Community partnerships.” It seems likely that the choice of Mr. Davidson reflects the Trump Administration’s view that asylum claims are largely fraudulent, and so we will have to see where the Asylum Division goes under his leadership.

As the new Director, Mr. Davidson is in a position to continue or cancel the practice of holding Quarterly Engagement Meetings. The fact that the November 14th meeting–which would have been the first of his tenure–has been canceled, does not bode well. But perhaps since he is new to his role, he was not yet ready to engage with stakeholders, and meetings will resume once he settles in. Perhaps.

I myself was looking forward to the Engagement Meeting because I was hoping to hear answers to questions I submitted about how each Asylum Office was addressing its backlog. Whether USCIS will ever provide answers to these questions, I do not know. I reached out to them after I learned that the meeting was canceled, but I have not yet received a response.

I certainly hope the Asylum Division will resume the practice of holding public meetings. Whatever your feelings about asylum seekers and the asylum system, when government agencies close off avenues of communication and hide behind bureaucracy, it is bad for our democracy. It also begs the question: If the Asylum Division is so intent on cutting communication with us, what is it that they are trying to hide? 

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