In Defense of the Homeschoolers’ Asylum Bill

by Jason Dzubow

Last week, the House Judiciary Committee passed a bill that would grant asylum to families of homeschoolers who are persecuted by their governments. The bill, sponsored by Congressman Jason Chaffetz, would also make it more difficult for others fleeing violence to obtain asylum in the U.S. by (among other things) raising the bar for credible fear interviews and blocking all government funding for child refugees who need lawyers. Congressman Louis Gutiérrez criticized the bill’s restrictions: “Shouldn’t children who are fleeing child abuse and violence be afforded the same protection as a child who is denied homeschooling?”

While I personally find this bill distasteful, it seems to me that it falls within the grand tradition of asylum. One of the unique characteristics of asylum is that, by granting asylum to an individual, we implicitly condemn the actions of his home country. You can’t have asylum without a bad guy—a persecutor. When, for example, we grant asylum to a member of a religious minority from China, we send a message that the Chinese government persecutes its own people based on religion. Thus, asylum is inherently political: We make a political statement about another country, and at the same time, we demonstrate our own values.

Guttierrez Chaffetz 2
Gutierrez to Chaffetz: “You’re like a homeschooler on a school day – No class.”

Historically, the political nature of asylum has played an important role in the development of our law. For example, the 1951 Convention on the Status of Refugees (which we helped create and upon which our current law is based) limited asylum to the five protected categories: Race, religion, nationality, political opinion, and membership in a particular social group. This definition had the effect (probably intended) of helping people fleeing from persecution in the Soviet Union (because they generally faced a type of persecution that fit within a protected category) without offering much to people fleeing from persecution in the West (because such people generally faced “persecution” in the form of economic harm or crime, which does not qualify them for refugee status).

What’s more, we’ve never been particularly subtle about the political nature of asylum. During the Cold War, we gave asylum to “trophy refugees,” high-profile people who defected from the Soviet Block to the West. Such refugees helped demonstrate Western moral superiority over the Communists, and so we were happy to take them.

More recently—in the mid-1990s—Congress amended the definition of refugee to include victims of forced family planning. This amendment was a direct refutation of China’s one-child policy. And it was an expression of our country’s (or at least Congress’s) opposition to abortion.

Except for the forced-family-planning amendment, Congress has never modified the definition of refugee. But courts—prompted by creative lawyers—have expanded the definition to include gays and lesbians, victims of female genital mutilation, and people facing domestic violence, among others. While these changes have helped many people, they were not driven by a desire to make a political statement about other countries. And certainly they are not based on our collective desire—as expressed by Congress—to send a message condemning behavior that offends us. Rather, they are based on the idea that people fleeing persecution should be treated equally.

Most lawyers—including yours truly—are big fans of equality. If the state offers a benefit to Joe (be it a tax break, the right to marry, a lenient criminal sentence, or asylum), it should offer the same benefit to Mary. My belief in equal treatment for asylum seekers leads me to oppose special preferences for certain groups, like victims of forced family planning and people fleeing Cuba. In my opinion, such people do not need special laws to protect them. They can request asylum like everyone else. In short, I believe that asylum should not be about sending a political message; it should be about protecting people from harm. If a person demonstrates that she faces harm, she should receive asylum.

The problem is that democracy and equality don’t always go together. The Equal Protection clause protects Americans from the tyranny of the majority, but equal protection does not apply in the context of asylum. Congress could, for example, offer asylum only to people from certain regions or to people of certain religions.

Perhaps we can call it the Realpolitik theory of asylum versus the Equality theory. The Homeschoolers’ asylum bill falls on the Realpolitik side, in that it is designed to further our country’s political agenda by offering a humanitarian benefit to a group that we deem worthy of protection.

Should  it become law, the bill would also represent a democratic development of asylum law, something we have not seen in almost 20 years. Wouldn’t it have been nice if some of the other developments in the law–protecting gays and lesbians, for example–had been accomplished democratically instead of by lawyers pushing the boundaries of asylum in court?

To be sure, I don’t like this bill. I don’t like how it restricts most asylum seekers (especially children) while offering special benefits to people who I think should apply for asylum like everyone else. But my opinion is clearly not the point. The Homeschoolers’ bill falls within the democratic, Realpolitik tradition of asylum. It helps a group of individuals who “We the People” view as deserving of protection and it places restrictions on another group that is deemed less deserving. It also sends a message about American values, for better and for worse.

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Bibi Netanyahu’s Full-Employment Plan for Asylum Attorneys

by Jason Dzubow

Perhaps you’ve heard about the plan by Israeli Prime Minister Benjamin Netanyahu to derail U.S.-Iranian negotiations over Iran’s nuclear program. Many Republican leaders have joined the effort, and 47 Senators (all Republican) led by Tom Cotton wrote an open letter to the Ayatollahs warning them against a deal. All this is in the public record.

Senator Tom Cotton: Warmonger or job creator?
Senator Tom Cotton: Warmonger or job creator?

What’s less well known is the role of a powerful lobbying group, which has pushed efforts in Congress and in the media to end negotiations before any agreement is reached. The group is known by its acronym: AIPAC. No, no, not that AIPAC. I speak of the “Asylum and Immigration Professionals Advancing Chaos” lobby, also known as “the Other AIPAC.” 

Why would asylum and immigration professionals want to advance chaos, you ask. Although I shouldn’t do it, I’ll let you in on a little secret: Chaos is good for our business. Let’s face it–the more things suck over there, the more likely people are to come here. And when they come to the United States, they need immigration and asylum lawyers to help them stay. Move over Big Tobacco and Big Oil; make room for Big Asylum!

The Other AIPAC has a record of success. Take, for example, the Second Gulf War in 2003. Before the U.S. invasion, our friend Mr. Netanyahu told Congress, “If you take out Saddam, Saddam’s regime, I guarantee you that it will have enormous positive reverberations on the region.” I’m not sure about that, but taking out Saddam’s regime has certainly had positive reverberations in the region of my wallet. Scores of Iraqi asylum-seekers have hired me since we “brought democracy” to Iraq. Thank you, Bibi and the Other AIPAC! 

What’s so wonderful about the Other AIPAC is that people seem to accept what it says despite all evidence to the contrary. For example, Mr. Netanyahu recently indicated that he would never cede territory to the Palestinians: “[T]here will be no concessions and no withdrawals,” he said. He apparently views the land as vital to Israeli security. But what say the people who are actually experts in Israeli security. In contrast to Mr. Netanyahu’s position, over 180 retired Israeli security officials–high ranking members of the military and intelligence services who have devoted their lives to protecting Israel–have strongly endorsed a negotiated settlement with the Palestinians and a two-state solution:    

We believe that it is imperative, possible, and urgent to launch an Israeli regional initiative to determine borders that ensure security for the citizens of Israel and a firm Jewish majority. Such an initiative will strengthen Israeli society from within; allow for more effective handling of security threats; create dramatic political, security and socio-economic transformation; and enhance Israel’s international standing.

So does this mean that Mr. Netanyahu’s position is actually endangering Israel? Is he substituting self-delusion for reasoned analysis? No matter, the Other AIPAC has got his back. More chaos = more business, that’s our mantra.

But, you ask, what about Iran? Mr. Netanyahu says that we know enough about the current, not-yet-negotiated deal to know that it is worse than no deal at all. It will leave Iran able to produce a nuclear weapon in a short period of time, it will lift all restrictions on Iran’s nuclear program after 10 years, it won’t stop Iran’s aggression in places like Iraq, Syria, and Yemen, or its sponsorship of terrorism. He gives us a simple alternative: Tighten the sanctions and hold out for a better deal. Sounds reasonable, no?

Well, let’s ask the experts. The same group of retired generals that oppose Mr. Netanyahu on Palestine also opposed his speech to Congress:

[T]here is not a single security expert that doesn’t understand that after this speech, Iran will not be distanced from the nuclear option it is attempting to achieve. The people of the US see the rift between the countries and the leaders, the people of Israel see it, and no less importantly, the people of Iran see it.

The international coalition of countries that has been squeezing Iran, and that forced them to negotiate, has been led by the Obama Administration. To be fair, the effort to isolate Iran began under the Bush Administration. But the sanctions have been significantly expanded under Mr. Obama.

Perhaps–as Mr. Netanyahu proposes–we could continue to tighten the screws on Iran, and our coalition partners would follow along. Or maybe, as many experts believe, increasing sanctions would cause the coalition to fall apart. Then, I suppose we could go it alone. Unilateral sanctions work so well, after all. Just ask Cuba. But again, all of this is of no consequence to the Other AIPAC. We say, “Tighten those sanctions! To hell with the coalition! Bring on the chaos!”

Ignore the experts, block all negotiation, pander to the base with angry statements about Iran, put partisanship ahead of policy. This is the Other AIPAC’s recipe for chaos. And, as we know, chaos is good for business.

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For Every Child, a Lawyer

by Jason Dzubow

A case recently argued before the U.S. District Court in Seattle seeks to ensure that every child in removal proceedings is represented by an attorney. The case–styled J.E.F.M., et al. v. Holder–was filed by the Northwest Immigrant Rights Project, and claims that without the assistance of a lawyer, children in Immigration Court cannot receive due process of law.

Some children probably don't need lawyers.
Some children probably don’t need lawyers.

The Complaint notes that despite the efforts of many non-profit organizations, volunteer lawyers, and the government itself, the majority of children who appear before Immigration Judges go unrepresented. It compares the situation of children in Immigration Court with children in juvenile delinquency proceedings:

[The] Supreme Court recognized that when the Government initiates proceedings against children facing juvenile delinquency charges, the Due Process Clause requires the Government to provide those children with legal representation to ensure that the proceedings are fundamentally fair. In re Gault, 387 U.S. 1, 41 (1967). The Court held that “[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it… The Constitution guarantees children this safeguard notwithstanding the civil, rather than criminal, character of juvenile delinquency proceedings.

Immigrants, including immigrant children, are also entitled to Due Process when facing deportation [and Immigration Court proceedings, like juvenile delinquency proceedings, are civil, not criminal]. Reno v. Flores, 507 U.S. 292, 306 (1993). Both the Constitution and the immigration laws guarantee all children the right to a full and fair removal hearing, including the opportunity to defend against deportation and seek any forms of relief that would enable them to remain in the United States. And just as in juvenile delinquency proceedings, children cannot receive that fair hearing without legal representation.

In terms of the basic legal argument, this seems like a slam dunk: There is no way a child–or even your average non-English-speaking adult–can navigate the Immigration Court system without the assistance of someone who knows what she’s doing (i.e., a lawyer). But of course, the hard realities of life in the immigration world are not so simple, and there are a few policy arguments that may carry more weight than the legal claim. 

The first policy argument against providing lawyers to unaccompanied minors is cost. I view this argument as a bit of a red herring because I am not convinced that the cost of paying for lawyers is much different than the cost of not paying for lawyers. In cases where the alien is unrepresented, the Immigration Judge and the Trial Attorney must spend significant extra time on the case, and this time obviously costs the government money. I imagine this problem is particularly acute in cases involving children, who cannot easily articulate their claims. Where the child is represented, her attorney can prepare the case, communicate with DHS counsel, and present the case efficiently. Whether paying for this attorney is much more expensive than making the IJ and DHS sort out the case, I don’t know. But I would imagine that the difference in cost is not as significant as opponents of providing lawyer might have us believe.

The second policy argument concerns the incentives that providing lawyers will create. To me, this is the strongest policy argument against giving lawyers to children. The so-called “surge” of unaccompanied minors does not correlate with a spike in violence–the source countries have been very violent places for years. Rather, it seems likely that the surge was caused by “pull” factors–maybe the belief that immigration reform in the United States would grant benefits to people, if only they could get here before the reforms were implemented. I have little doubt that providing lawyers to unaccompanied minors would further incentivize children (and everyone else) to come here. Whether this is necessarily a bad thing, I am not sure. On the one hand, many of the young people who have come here face real harm in their home countries. On the other hand, more people coming to seek asylum in the U.S. burdens an already overwhelmed system and causes long delays–and great hardship–for everyone in the system. Of course, there are already many incentives for people to come to the United States: Safety, jobs, family reunification. I am not sure that one more incentive–the guaranteed assistance of an attorney–will make much difference.

Finally, there is the issue of public perception. It’s unclear to me where the public stands on asylum in general, and on unaccompanied minors in particular. There are loud voices on both ends of the spectrum: Advocates on one side who essentially believe in open borders and who want to use the asylum system to achieve that goal, versus restrictionists on the other side, like some in Congress who hope to “protect” these children by sending them all home. Frankly, I am not much of a fan of either camp, and I suspect that the general public is also somewhere in the middle. If the asylum system becomes too costly, or too much of an open door, we will likely see a shift in opinion against it, which will be bad for everyone. Whether or not providing lawyers to unaccompanied children will be the straw that breaks the camel’s back, I do not know, but given the current mood in Congress, it is a danger that needs to be considered.

All these policy considerations should (theoretically) not count for much with a court of law, but traditionally, such arguments have impacted decision-making in asylum and immigration cases. As advocates have continually expanded the categories of people eligible for asylum and the protections available to asylum seekers, we run the risk of making asylum a victim of its own success. For the sake of the many people who receive protection in our country, I hope that will not be the case.

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My Asylum Case Is Delayed; What Can I Do?

by Jason Dzubow

These days, I feel a bit like a broken record: Delay, delay, delay. It’s all I seem to write about (and what I spend much of my work day dealing with). But it is the big issue with asylum cases, both in the Asylum Office and the Immigration Court, and so it is on everyone’s mind. Today I want to talk about delay at the Asylum Office and what can be done about it.

Yipee! Asylum cases filed during the Jurassic period are now being interviewed.
Yipee! Asylum cases filed during the Jurassic period are now being interviewed.

Most recently, the Asylum Office changed its policy and is now interviewing old cases before new cases. This means that new cases will probably take one to two years before the interview. Previously-filed cases will be interviewed in the order that they were received by the Asylum Office. Our oldest backlog cases–filed in April 2013–have just been scheduled for interviews, so we are starting to see the effect of the new policy.

Anyway, let’s get to it. If your case is delayed, what can you do about it? There are several actions you can take to try to get a faster interview date. None of them is guaranteed to work, but–depending on your circumstances–some may be worth a try.

Short List: You can put your case on the “short list.” The short list is a list of people who will be contacted for an interview if another case is canceled. In my local Asylum Office (Virginia), there are approximately 250 cases on the short list. The Asylum Office interviews about 10 such cases per month, so the “short list” is not very short or very fast. When your name is called, you may not have much notice before the interview (for example, the Asylum Office could call you today and tell you to appear for an interview tomorrow). For this reason, when you put your name on the short list, your case should be complete and all documents should be submitted. This is particularly crucial if your Asylum Office–like mine–requires all documents to be submitted at least one week prior to the interview.

Once your name is on the short list, the Asylum Office will eventually contact you for an interview. In the event that you are called, but cannot attend, there is no penalty. However, your name will go to the back of the line, so probably you will not be called again for some time.

The bottom line here is that the short list may be a way to get an earlier interview date, but it is not all that fast. So it is certainly not a perfect solution. On the other hand, there really is no downside to putting your name on the short list, so if you would like to move your case faster, this is a good first step.

Request to Expedite: If you have a medical, family, professional, or other emergency or need, you can ask the Asylum Office to expedite your case. We have had mixed luck with this option. We’ve tried to expedite for several people where they had family members overseas who were facing problems. For most of these cases, the Asylum Office did not expedite, but for a few, it did. We were able to expedite a case where the client had cancer. We’ve also had luck expediting a case where the client needed to obtain status for professional reasons. In short, our success at expediting cases seems to have little relationship to the seriousness of the client’s problem.

If you want to expedite your case, you need to contact the Asylum Office and ask to expedite. You need to explain why you want to expedite and include some evidence–such as a doctor’s note–about the reason you want the case expedited. Again, we’ve had very mixed success with getting our clients’ cases expedited, but there really is no down side to trying.

Congress: You can contact your local Congressional Representative to ask for help with your case. You can find contact information for your local Representative here and for your state’s Senators here. Generally, in my experience, this option has not been effective at getting a faster interview date, but there is no harm in trying. If you have a U.S. citizen friend (or church group or other group) who can make this request for you, it may be more effective.

DHS Ombudsman: You can inquire with the DHS Ombudsman’s office about your case. This office exists to assist people who have problem cases. The Ombudsman’s website is here. I have a high opinion of the Ombudsman’s office, and they do want to help, but I think their ability to make cases go faster is very limited. I doubt they will be able to help make a case faster under ordinary circumstances. But perhaps if you have tried to expedite due to an emergency, and you have not had success, they could assist you.

Mandamus: You can file a Mandamus lawsuit against the Asylum Office. In a Mandamus lawsuit, you sue the Asylum Office and ask the Judge to order the Asylum Office to do its job (process your case). I have never done this, but I have heard about some applicants successfully suing the Asylum Office. Generally, the Asylum Office will not want to waste resources fighting Mandamus suits, so they might agree to process the case rather than fight the lawsuit. As I see it, the two downsides to this are: (1) There is not a strong legal basis to force the Asylum Office to process a person’s case. The regulations generally require asylum cases to be processed in less than six months, but there are broad exceptions to this time frame, and the Asylum Office can rely on those exceptions to process cases more slowly. Although the suits may not be very strong legally, they can still succeed where the Asylum Office would rather interview the applicant than fight the lawsuit; and (2) It can be expensive to hire an attorney to process a Mandamus lawsuit. For applicants who can afford this approach, however, it might offer a way to make things faster (though it will surely not enamor you to the Asylum Office). 

To learn more about your options, you may want to contact your local Asylum Office. Contact information about your office can be found here. There is no magic solution to delay at the Asylum Office, but I hope that some of these suggestions will be helpful. If you have had success with these or other ideas, please let us know.

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Old Asylum Cases Are the New Priority

by Jason Dzubow

As of December 2014, there was 73,103 asylum cases pending in Asylum Offices across the United States. That’s up from 65,759 in October, an increase of 7,344 cases in just three months (you can see the latest stats here, including a breakdown for each Asylum Office). So it’s clear that despite their efforts, the Asylum Offices are continuing to fall behind in terms of processing cases. Indeed, in the best month of the last quarter, the Asylum Office completed 2,947 cases. At that rate–and assuming no new applicants file for asylum–it would take over two years to get through the current backlog. This is not good, and the Asylum Offices are now making changes to deal with the situation. 

"Congratulations! It's finally your turn."
“Congratulations! It’s finally your turn.”

I’ve written before about the reasons for these delays. Primarily, it was due to a significant increase of asylum seekers from Central America arriving at our Southern border. As best as I can tell, the number of people coming here from Central America has not abated. Since most of these applicants are detained at government expense and because many of them are minors, their cases are given priority, at the expense of other asylum seekers.

So how were the Asylum Offices dealing with the increased volume, and what has changed?

Until December of last year, the Asylum Offices were attempting to process cases on a “last in, first out” basis.  Meaning, they skipped over the old cases and tried to process new cases. The logic was that if they started with the old cases, processing times would be greatly increased for new cases. If an alien knows her case will take several years, she might decide to file a frivolous case, just for the Employment Authorization document (“EAD”). The slower the case moves–the thinking goes–the greater the incentive for such people to file false cases. The fear of frivolous applicants taking advantage of the system in this way is not unfounded.

In the 1980s and early 1990s, when a person filed for asylum, he received an EAD more quickly. At this time, there were massive delays and cases took many years. The combination of long waiting periods and quick EADs encouraged fraud. I heard one anecdote from an INS officer who remembered a U-Haul truck full of applications arriving for processing. They were all boilerplate cases from China, filed by the same (probably unscrupulous) attorney. Even if the cases were ultimately denied, the applicants would have an EAD and be able to live and work in the U.S. for several years. Of course, many cases during this period were legitimate. In those days, there were very brutal civil wars in several Central American countries. As a result, many people fled to the United States.

In 1995, the law changed so that asylum applicants had to wait 180 days before they were eligible for an EAD (though they could mail the application for the EAD after 150 days). This was intended to reduce fraud. I have my doubts as to whether this change made much of an impact, but as the civil wars to our South ended, refugee flows decreased, and the Asylum Offices slowly reduced wait times.  By the time I went into private practice (in late 2003), asylum cases were interviewed a few months after filing, and most applicants received decisions a few weeks after the interview.

This all changed in early 2013, when large numbers of Central Americans–mostly young people–again began arriving at our border. The migration was not spurred by war, but by generalized violence from gangs and domestic abusers, as well as a failure by Central American governments to protect their citizens. The influx of new people overwhelmed the system and created the situation that we have today.

USCIS (the Asylum Office) has been struggling to keep up. Here is a recent announcement about their efforts:

The USCIS Asylum Division is hiring an additional 175 asylum officers, increasing the number of authorized asylum officer positions to 448. This represents a 65% increase since July 2013. As of January 2015, the Asylum Division has 350 officers on board and continues to hire and train new personnel. During 2014, USCIS also trained and temporarily detailed officers to the Asylum Division to assist with the increasing workload. 

Unfortunately, their efforts have not been enough. As of December 26, 2014, they abandoned the “last in, first out” system. Now, the Asylum Offices will process cases in the following order of priority:

  • First, applications that were scheduled for an interview, but the applicant requested a new interview date;
  • Second, applications filed by children; and
  • Third, all other pending affirmative asylum applications will be scheduled for interviews in the order they were received, with oldest cases scheduled first.

In other words, aside from rescheduled cases and cases involving children, the Asylum Offices will now process old cases first. So what does this mean? 

First, the good news. For those who have been waiting for two years for an interview, hopefully, your time is coming soon (though in my office, we have not yet seen any of our old cases scheduled).

Next, the bad news. If you are a new asylum applicant, you can expect to wait a long time for your interview. How long, we do not know, but I suspect that–even if they hire more officers, as they are trying to do–it will be at least a year. There are some minimal things to do to make a case faster (the “short list” and a request to expedite for emergent reasons), but generally it is very difficult to obtain a faster interview date.

And finally, the possibly bad news. We will see whether long delays encourage people to file more frivolous cases. If so, it will further clog the system.

As for me, of course I am rarely happy about change, and this change is no exception. I am glad that the government will start processing old cases. Those people have been waiting a long time. However, I wish they would give priority to people separated from their spouse and children–whether they filed two years ago or two days ago. It seems to me that single people can endure the wait much better. Like the old system, the new system does little to help people who are missing their family members, and to me, that is the real tragedy of the backlog.  

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Immigration Court: The Other Backlog and What to Do About It

by Jason Dzubow

I’ve written quite a bit in these pages about the backlog at the Asylum Offices, but today I want to focus on another backlog–in the Immigration Courts–and what can be done to improve the situation. The Court backlog has been a bit off my radar; I suppose because the Immigration Courts have always been slow, and so delay in that realm was the norm. But the fact is, the delays in Court have gotten worse. My furthest case is currently set for March 2019. I expect to travel to the Court in my hovercraft.

Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.
Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.

The basic problem for the Courts, and across the government, is money. Resources are limited and now, with a Congressional leadership hostile to immigration, it seems less likely that the budget for EOIR–the Executive Office for Immigration Review; the agency that oversees the Courts–will be expanded (though a new, anti-immigration bill pending in the House would create 50 new Immigration Judge positions). However, there are some reforms that could be implemented that would not require additional money from the government.

Below are a few suggestions. Some might require Congressional action; others would not. Given the current situation, something needs to be done. Perhaps some of these ideas would help alleviate the Court backlog:

– Impose Costs: Criminal and civil courts routinely impose costs and fines on people in the system, so why shouldn’t Immigration Courts do the same? There generally is only one reason that a person would have a case before an Immigration Judge–he violated the immigration law. Maybe the violation wasn’t his fault (think referred asylum seekers), and so a fine or payment of costs is not warranted, but the IJ can make this determination. The Immigration Court system is expensive, and it seems fair that people who are in the system because they violated the law should help pay for it. And of course, this money could be used to help improve the system.

– Premium Processing: Certain application before USCIS allow for premium processing. The applicant pays additional money and receives a faster decision (though not necessarily a better decision). Maybe the Immigration Courts could create some type of premium processing so that an alien could pay additional money to speed up her case. I have written about this idea in the context of the Asylum Office. The people who pay the premium processing fee would benefit the most from this plan, but the infusion of money into the system should benefit everyone.

With regard to the imposition of costs and premium processing, it seems a reasonable question to ask: Is this fair to people who cannot afford to pay? I suppose it is not, but America is not really a fair place. We are a liaise faire capitalist democracy. Every man for himself, and all that. We routinely fine the poor for being poor, and while I don’t like imposing costs in the immigration context, it is a way to improve the system for everyone–even those who cannot pay.

One last point here. Maybe one way to ease the burden would be to spread out the cost. If an alien is fined or forced to pay costs (to pay for the court, DHS, his own detention, etc.), those costs could be paid over time. Instead of receiving a green card, for example, the alien could receive a conditional green card that must be renewed every two years. As long as he continues to pay his debt, the card will be renewed.

– Empower DHS: DHS attorneys are overworked and lack the resources necessary to properly do their jobs. Adding additional staff to the various Trial Attorneys offices would allow DHS to review cases in advance. This would allow attorneys like me to file applications for relief in advance. DHS could then review the applications and–where appropriate–agree to the relief. Of course, DHS would not agree to relief in all cases, but in many cases, relief is not contested. If we could agree on relief in advance, we could remove the case from the Court’s docket, thus freeing space for other cases. Indeed, perhaps this could be combined with premium processing, so that the alien can pay a fee to DHS to review her case (and DHS could use this money to hire more staff). Maybe DHS could even meet with the alien to further explore whether relief is appropriate. If, after examining the case, DHS determines that relief is appropriate, it could inform the Court, which would then grant the relief without a hearing.

There has been some (tepid) movement in this direction, with prosecutorial discretion, but that does not go far enough. Aliens who are eligible for substantive relief do not want prosecutorial discretion; they want their cases granted. If DHS had the resources to review and decide cases in advance, it would help alleviate the backlog before the Immigration Courts.  

– Pre-Master Calendar Hearings: Let’s face it, Master Calendar Hearings (“MCH”) are a huge waste of time. Why not require any alien who enters the system to attend a pre-MCH with a member of the Court staff (not an IJ). The pre-MCHs could be arranged by language group, so that everyone attending speaks the same language and the Court staff member could be fluent in that language (or have an appropriate interpreter). At the pre-MCH, the aliens would watch a video–in their own language–explaining the system and their rights (basically what the IJ repeats to pro se aliens 31 times each MCH). The staff member could answer basic questions and encourage the pro se aliens to find lawyers (basically what the IJ does 31 times each MCH). Aliens who will not use a lawyer can be scheduled for an in-person MCH, like what we have now. Aliens who say they will hire a lawyer will be given a deadline for the lawyer to enter her appearance (see the next suggestion for more on lawyers and MCHs). If the deadline passes, the alien will need to attend an in-person MCH.

– e-Master Calendar Hearings: EOIR now requires all attorneys to register and obtain an EOIR ID Number. As far as I can tell, EOIR does nothing with these ID numbers. However, it (supposedly) is a first step towards electronic filing. Federal courts across the United States require electronic filing, and I see no reason that the Immigration Courts should not do the same. Once an attorney enters her appearance, she should be able to go on-line and plead to the allegations and charges in the Notice to Appear (the charging document in Immigration Court). She should also indicate the relief sought. If there is some reason that the lawyer needs to see the IJ, she can request to appear at a regular MCH. But for the large majority of cases, all the pleadings and requests for relief could be done on-line. How, you ask, would this be an improvement over the current system, where lawyers can file written pleadings? At least in my experience, written pleadings are a huge pain in the tuchus. IJs often ignore them until the last minute, and we have to repeatedly call the Court to see whether the IJ will rule on them. So they really are not worth the trouble. If there was an easy electronic system that actually worked, and we could avoid MCHs, attorneys would be much inclined to use that system. It would save Court and DHS time, and it would also save attorney time and perhaps reduce costs for the alien.  

OK, I suppose that is more than enough for now. If anyone at EOIR wants to hire me to implement these changes, you know where to reach me…

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USCIS Errors Compound Asylum Applicant Woes

by Jason Dzubow
"Bye, Mommy, I'll see you in high school."
“Bye, Mommy, I’ll see you in high school.”

I’ve written about the “backlog” a number of times. Essentially, as a result of large numbers of Central American youths arriving at our Southern border and seeking asylum, the system was overwhelmed and—though it didn’t exactly grind to a halt—there have been major delays for many applicants. The “surge,” as it is known, was not USCIS’s fault and, in fact, USCIS has worked hard to continue processing cases under very difficult conditions.

I’ve discussed before about some things USCIS could do to ease the burden on asylum applicants—prioritize applicants separated from family members, expedite following-to-join petitions once a case is approved, perhaps implementing “premium processing” for asylum applicants who can afford it—but lately I’ve noticed an unfortunate trend that USCIS needs to correct.

We’ve seen several of our clients’ applications for Advance Parole improperly handled or denied. Advance Parole is a document that allows an asylum applicant to leave the United States, travel to another country, and then return to the U.S. and continue her asylum application. When asylum applications generally took only a few months, Advance Parole was much less necessary. But now, when applications can take years, it is very important. In the era of the “backlog,” many asylum applicants face prolonged separation from spouses and children, not to mention parents, siblings, and friends. As you can imagine, these long separations are often the worst part of the whole process.

Advance Parole is a way to mitigate the difficulty of long separations. The applicant can obtain Advance Parole, travel to a third country to see her family members, and then return to the United States and continue her case. The application form itself (form I-131) asks whether the applicant plans to return to the country of feared persecution and—if the applicant returns to her country—it could result in a denial of asylum.

In recent weeks, we’ve been seeing two problems with USCIS decisions in Advance Parole cases. The first problem involves outright—and improper—denials of the I-131s. In these denials, USCIS claims that the I-131 must be denied because the applicant has not filed a concurrent form I-485 (application to adjust status to lawful permanent resident). In other words, because the asylum applicant has not filed for his green card, USCIS believes that he is not eligible for Advance Parole. This is simply incorrect: Asylum applicants are eligible for Advance Parole. See 8 C.F.R. 208.8. What is so frustrating about these denials is that we clearly indicated on the form I-131 that the person was an asylum seeker, and we included evidence of the pending asylum application; evidence that USCIS completely ignored. Not only do these denials prevent asylum applicants from seeing relatives (including relatives who are in very poor health), but they also waste money: The cost of an I-131 application is $360.00. To appeal the denial of an I-131 costs $630.00 (not counting any attorney’s fees) and takes many months, so it really is not worth the trouble and expense.

The second problem we’ve seen with Advance Parole applications is that USCIS has been requesting additional evidence about the purpose of the trip. So for example, where one client has a sick parent who he hopes to visit in a third country, it has not been enough to provide some basic evidence about the sickness (like a doctor’s note or a photo in the hospital), USCIS has requested more evidence of the health problem. Why is such evidence needed? As applicant for asylum is eligible for Advance Parole. He can travel for any reason: To see a sick relative, to attend a wedding, to go to a professional conference. So why should USCIS need to see evidence that a relative is ill in order to issue the Advance Parole document? It is insulting and unnecessary; not to mention a waste of time. I suppose this type of request for additional evidence is better than an outright denial, but it is still improper.

What also been a source of frustration, is that we’ve filed three identical Advance Parole applications for a husband, a wife, and their child. We mailed the applications in the same envelope with the same evidence. So far, the husband’s was denied because there was no pending I-485, the wife was asked for additional evidence about her sick relative (so presumably USCIS believes she can travel despite the absence of a pending I-485), and the child’s has been transferred to a different office altogether and is still languishing there. They say that consistency is the Hobgoblin of small minds, but it would be nice if USCIS could get its act together on these Advance Parole applications. Real people are harmed because of the government’s confusion about how to process these cases. I don’t know if it is a training issue or something else, but USCIS should examine what is going on here.

As the backlogged cases drag on and on, foreign travel becomes more important for many applicants. The uncertainty surrounding the I-131 applications, and the inability to see family members, is only adding to the applicants’ stress and frustration. Let’s hope that USCIS can resolve the problem and give some basic relief to asylum applicants.

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Lessons Learned from Cases Lost

by Jason Dzubow

They say that those who do not learn from history are doomed to repeat it. In that spirit, I’d like to discuss some asylum cases that I’ve lost (or at least that were referred by the Asylum Office to the Immigration Court) and why the cases were not successful.

Remember: You can't spell "client" without "lie."
Remember: You can’t spell “client” without “lie.”

I am prompted to write about this topic by a recent, unpleasant experience at the Asylum Office. My client was an Iraqi man who claimed to have been kidnapped by a militia, which targeted him due to his religion. Unfortunately–and despite us directly asking him about his travels–the man failed to tell us that he had been to Jordan and applied for refugee status there through the UN. At the interview, the client again denied that he had ever been to Jordan, but then the Asylum Officer told him, “Service records indicate that you applied for refugee status in Jordan in 2011” (whenever an Asylum Officer begins a sentence with “Service records indicate…”, you know you are in trouble). The client then admitted that he had been in Jordan for a year. At this point, it was obvious to me that things were only going to get worse from there, and so I recommended that the client end the interview immediately, which he did. That is the first time I ever had to end an interview in this way, and, frankly, it is pretty upsetting. The case has now been referred to court, where–if I continue as the attorney–we will have a mess on our hands. So what are the lessons?

First, and most obvious: Don’t lie to your lawyer. In the above example, if the man had told me about his time in Jordan, we could have dealt with it. He didn’t and so we couldn’t. Unfortunately, many immigrants take the advice of their “community” over that of their lawyer. Asylum seekers need to understand the role of the attorney–it is our job to represent you in a process that can be confrontational, and so the government can use information from your past against you. If you don’t tell your lawyer about past problems (especially when he specifically asks you), we cannot help you avoid those problems.

Another lesson is that the U.S. government often knows more than you think they know. If you have crossed a border, it’s likely that the government knows about it. The Asylum Officer will have access to anything that you said during any previous contacts with the U.S. government (including during visa interviews). The Asylum Officer also probably has access to anything you said in interviews with other governments or the United Nations. So if you lied in a prior encounter with the U.S. government or any other government, you’d be well advised to inform your attorney. That way, he can try to mitigate the damage. Also, in asylum cases, where a person lies to obtain a visa in order to escape persecution, the lie is not necessarily fatal to the asylum claim. See Matter of Pula.

A different area where we see clients get into trouble is with family relationships. Sometimes, a client will say he is single when he’s married, or that he has five children when he has two. Of course, if the client listed different relatives on a visa application, the U.S. government will know about it, and the lie will damage the client’s credibility. Why would a client lie about this? The most generous explanation, which has the virtue of being true in some cases, is that the client considers the listed relative to be his child, but there is no formal adoption and the client does not understand the legal niceties of the question. In many societies, people who raise a relative’s child consider that child their own. As long as the client explains the situation and the Asylum Officer doesn’t think the client is trying to hide something, she should be fine, but again, if the client doesn’t tell the lawyer, the lawyer cannot properly prepare the case.

Speaking of family cases and cases where the government knows more than you’d think, I had one case where the woman got married, but did not list the marriage on her asylum form (and did not tell me). In fact, she really did not consider herself married–she signed a marriage contract, but never consummated the marriage, and she seemed to have put it behind her. Unfortunately for her, the Asylum Officer somehow knew that she was married. The result: Her case was denied and referred to court. Had she informed me (and the Asylum Office) that she was married, she likely would have been approved–her brother’s case was approved under the same circumstances. So again, the lesson is that the government may know more than you think they know. 

The bottom line here is that when preparing an asylum application, it is a bad idea to lie. The U.S. government knows a lot. How do they know so much? I don’t know. Maybe ask Edward Snowden. But the point is, if you are filing an asylum application and you are not forthcoming with your responses, you risk losing your case.

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A Well-Founded Fear… of Muslim Asylum Seekers

by Jason Dzubow

For some time now, the threat of Islamic extremism has been an important factor in our country’s immigration and asylum policies. But two recent–and horrific–events overseas have reminded us about the gravity of that threat.

CharlieFirst is the case of Man Haron Monis, an Iranian national who received asylum in Australia. Last month, Mr. Monis took hostages in a café, forced them to display a Jihadi flag, and demanded to speak to the Australian Prime Minister. By the time the incident ended, two hostages were dead and several were injured. Mr. Monis also died in the confrontation. The incident was only the most recent in a long history of problems for Mr. Monis. Among other things, he had been charged as an accessory in the murder of his ex-wife, he was charged with several counts of sexual assault against various women, and he had notoriously sent hate letters to the families of Australian service members killed in Afghanistan, which also resulted in criminal charges.

The second incident is the massacre at Charlie Hebdo magazine in France. The suspects in that attack seem to have been French nationals of Algerian decent who saw the attack as revenge for the magazine’s cartoons disparaging the Prophet Mohamed. At least some of the suspects in that attack have had prior problems with the law, including terrorism-related arrests, and the men seem to have been connected with a Yemeni terrorist network.

So with two fresh examples of Islamic extremists attacks in the West, it seems to me a fair question to ask: Why do we risk allowing terrorists into our country through the asylum and refugee system? Why not simply limit asylum to people who hale from non-Muslim countries? Certainly there are plenty of non-Muslim refugees who need our help. And certainly, as well, there are people not too far on the fringe who–assuming they could not eliminate asylum altogether–would be very happy to limit humanitarian relief to non-Muslims.

There are several ways to address these questions. One way–which I won’t discuss in detail but I want to mention–is to talk about historic injustices in the relationship between the Muslim World and the West: Colonization, economic exploitation, repeated military interventions, humiliation. The West’s actions in the Middle East have contributed to the problem of Muslim extremism. But we have to live with the world that now exists, however imperfectly that world came to be, and I don’t think the West’s past failures justify putting our citizens at risk of attack by extremists. In other words, just because we helped create the problem of extremist terrorism does not mean that we shouldn’t do everything possible to prevent terrorists from coming to our countries, including–if appropriate–closing the door to asylum applicants from Muslim countries.

However, there are other reasons that I think justify allowing people from all countries to seek refuge here.

For one thing, allowing ourselves to be intimidated by terrorists into modifying our humanitarian values or cutting ourselves off from Muslim people would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. In a future post, I will make some suggestions for how we might further strengthen our defenses. 

Second, many of the Muslims that seek protection in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would be to send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, people will not cooperate with us going forward.

Third, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.

Finally, on a more personal note, most of the asylum seekers I represent come from Muslim countries such as Afghanistan, Iraq, Syria, and Egypt. Almost all of them hold strong pro-Western views (i.e., they believe in the foundational values of our country). Many of them worked with the United States or with Western organizations. Others are political activists, women’s rights activists, and gay rights activists. One of them famously (or infamously in his country) made a trip to Israel in an effort to promote peace. Many of my clients have been threatened by the same types of people who committed the murders in Australia and France. Some of my clients have lost family members to Islamic extremist attacks. A good number of my clients continue their political activities after they are granted asylum, as they hope to help bring change to their countries. As a matter of principle, morality, and as a matter of our national interest, I feel we are well-served by offering protection to such people.

Although the news usually reports terrorist attacks, it rarely reports the opening of a new school for girls. It reports threat levels and terrorist “chatter,” but it often ignores peace-building efforts, reconciliation, and democratic activism. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. We need to remain hopeful and not surrender to fear.

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Ten Reasons for Optimism in ’15

by Jason Dzubow

To work as an asylum attorney in the era of the backlog, you need to be either an optimist or a masochist. And I’m no optimist. But, as they say, “Fake it until you make it.” In that spirit, and in the hope of better things to come in the Year of Our Lord 2015, I present 10 predictions for the new year that hopefully will make you–and more importantly, me–feel better about the future of asylum:

"Sorry kids, you can check in, but you can never leave."
“Sorry kids, you can check in, but you can never leave.”

1. The BIA will create a new social group–Backlogged Asylum Seekers: This year, the Board will determine that people stuck indefinitely in an asylum backlog are a Particular Social Group, and that waiting for eternity constitutes persecution. Therefore, anyone in the backlog will automatically receive asylum. Backlog solved. Badda-boom, badda-bing.

2. Detained children: DHS will use the power of Eminent Domain to seize Disney World and convert it into a large open-air prison for children and families. Surprisingly, this will save the U.S. government over $1.7 billion. Since the estimated cost of caring for approximately 60,000 children is $1.8 billion, and a Disney season pass is only $634 per person, the total cost to the U.S. tax payer for “Dis-catraz” will be just over $38 million, a savings of almost 98%.

3. One year asylum bar: After holding rational debate, politely questioning witnesses, and carefully examining evidence, Congress will conclude that American asylum policy is not well served by continuing the one-year bar. A bi-partisan Congress will vote to eliminate the bar, and the President will sign the bill into law. Fox News will provide respectful coverage of the issue, and Michelle Malkin will refer to undocumented immigrants as–wait for it–“human beings.”  

4. EOIR attorney registry: In 2015, EOIR will actually do something with the attorney registry. I predict that prior to December 25, 2015, EOIR will send every registered lawyer a lovely holiday card. Each card will personally thank us for representing immigrants and will be signed by the Chief Immigration Judge himself. ICE attorneys will be disappointed when they do not receive holiday cards.

5. Eliminate Leap Years: This may not seem asylum-related, but hear me out. I predict that Congress will eliminate leap years in order to speed up court dates. This means that all my Immigration Court cases scheduled for 2027 will be heard 3 days early. On the downside, any case scheduled for February 29 will be re-set to 2042.

6. Following to join: Anyone with children knows that you sometimes need a break from them. That seems to be the reasoning behind the long wait times for I-730, Refugee/Asylee Relative Petitions. “Let’s give these poor refugees a nice long break from their children and spouses,” the well-intentioned designer of the I-730 process reasoned. But as it turns out, a year-long break (or more) is a bit much for most people. So I predict that in 2015, the I-730 process will be reformed so that it takes less than three months. Once the kids are here, if they need a break, the refugees can always hire a babysitter. 

7. Persecutor bar: The persecutor bar will be immediately applied to all current and former members of the U.S. government. Anyone who is a persecutors or who provided “material support” to persecutors will be deported. I wonder whether we will be able to find a country willing to accept so many dangerous persecutors.

8. A new definition of Particular Social Group: Most observers, including this one, believe that we are closer to a Unified Field Theorem than we are to a coherent definition of PSG, but I predict that in 2015, the BIA will come up with a workable, understandable, and fair definition of Particular Social Group. I also predict that someone (probably an immigrant) will discover a simple mathematical formula that explains everything in the universe. 

9. Filing for asylum will confer immediate status: Although it is fun in a Thunderdome-sort-of-way to watch asylum seekers struggle to survive for six months without a work permit or a driver’s license, I predict that Congress will change the law to allow asylum applicants to immediately obtain employment authorization and a driver’s license. So starting in 2015, applicants will be able to engage in such extravagant activities as driving to work, picking their children up at school, and earning money to eat.

10. USCIS Phone System: Thanks to billions in savings from sending all the detained children to Disney World, the government will hire enough telephone operators to answer all calls to the USCIS call center. The operators will be trained to provide substantive, helpful answers, and to make corrections to cases where necessary. Also, much like a PBS telethon, some of the operators will be celebrity guests. I suggest Dave Barry. He’s reasonably funny, and except for his end-of-the-year reviews, his schedule is pretty open.   

So as you can see, 2015 looks to be a banner year for asylum lawyers and our clients. I hope to see you there.

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It’s Time to End the Cuban Adjustment Act

by Jason Dzubow

In a surprise move (at least a surprise to me), President Obama announced that our country would be moving towards normalization of our relationship with Cuba. As part of the deal, the two countries agreed to exchange some political prisoners, and it appears we will be restoring diplomatic relations with Cuba and opening an Embassy in Havana.

Evidence that the embargo is working: A dashing Fidel Castro pre-embargo...
Evidence that the embargo is working: A dashing Fidel Castro pre-embargo…

During our long Cold War with Cuba, one element of our “special relationship” has been the Cuban Adjustment Act (“CAA”), a law that allows any Cuban who arrives in the United States to obtain residency here. It’s akin to automatic asylum for any Cuban who reaches U.S. shores.

I have written before about my opposition to this law: In short, I believe that Cubans should apply for asylum in the same way as everyone else. It makes no sense to give automatic asylum to Cubans, especially since other countries—Syria, Somalia, Afghanistan, Iraq to name a few—are much more dangerous than Cuba, and nationals from those countries must apply for asylum in the normal way.

It seems to me that the CAA and our over-all Cuba policy exists because of our government’s decision that this was the best way to isolate the Castro regime and force democratic change on our island neighbor. More specifically, anti-Castro Cubans in Miami pushed our nation’s Cuba policy towards the all-stick, no-carrot approach that—50 years later—has accomplished nothing. Now, it seems attitudes among the Cuban American community have shifted. To be sure, many still oppose normalization, but—so far at least—we have not seen the type of angry, in-the-streets reaction that characterized the Elian Gonzales affair during the Clinton Presidency. Perhaps there is more widespread recognition that the old policy hasn’t worked, and that we need to try something new.

Fidel Castro, visibly aged due to pressure from the embargo.
Fidel Castro, visibly aged due to pressure from the embargo.

So now that we are moving towards a new phase in our relationship with Cuba, it makes sense to end the CAA. The situation in Cuba is less dangerous than in many other countries, and so there is no longer any justification for the CAA based on humanitarian reasons (though I believe there really never was a valid justification for the law based on humanitarian reasons). The only logical reason for the CAA was as a propaganda tool against the Castro regime. I doubt this ever really worked (except maybe in the minds of some in the anti-Castro Cuban community), and—given that we are moving towards normalized relations—it certainly makes no sense at all any more.

All of this is not to say that the Cuban regime respects human rights or allows political dissent. It’s clear that the government represses the political opposition, and that it detains and persecutes perceived opponents. But that type of behavior is, unfortunately, all too common in many countries, and it does not justify a blanket asylum for everyone who comes from a country with a poor human rights record. Indeed, it is exactly why we have an asylum system in the first place.

The CAA is inconsistent with our new Cuban policy. When viewed in context of the overall asylum system, it cannot be justified on humanitarian grounds. It’s time to end the CAA and move towards a new relationship with Cuba.

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The Perils and Promise of Low Bono

by Jason Dzubow

“Low Bono” refers to providing legal representation for less than market value. The idea is that for certain clients who cannot afford an attorney, the attorney will reduce her price so that the client can hire her.

Lobo, No!
Lobo, No!

When lawyers represent asylum applicants (or anyone else) on a low bono basis, there is an obvious benefit to the applicant and to “the system,” but what’s in it for us? Why would an attorney do this? The most obvious reason is because the attorney wants to take the case—either to help the client or because it is an interesting or important matter. Another reason is that “market value” for an attorney’s time is simply too high for most potential clients. Both reasons apply to my decision about setting my fee for an asylum case: I am interested in asylum cases and that is the type of work I choose to do, and the market for asylum seekers won’t support high attorneys’ fees, at least not for most applicants.

For asylum cases in the DC-area, fees vary widely. I have heard about attorney’s fees as low as $900.00 for an affirmative case, and as high as $7,500.00 (and I even once heard about a case where the lawyer charged $80,000.00—dare to dream!). Most attorneys who primarily represent asylum seekers (such as myself) charge between $2,000.00 and $3,000.00 for a case. My fee for most cases is $2,800.00, which is a flat fee, meaning it includes photocopying and mailing, as well as attending the asylum interview. I have never calculated how this translates into an hourly fee (it would be too depressing), but I have no doubt that it is well below “market value,” whatever that means.

There is a great benefit to charging an affordable fee: You can get the types of clients and cases you want to do. And in this sense, I have been very lucky. I’ve represented journalists, human rights workers, women’s rights advocates, diplomats, and politicians, among many others. Given the good luck I’ve had with my clientele, I really shouldn’t complain, but since this is my blog, I will anyway. After all, wasn’t it Descartes who once said: “I complain, therefore I am.”

My main complaint is related to the backlog, and to delays with asylum cases in general. Before the backlog, most asylum cases would take maybe six or eight months from the time of hiring to the time of decision. Assuming a successful outcome, that was the end of the matter for me. Now, cases may take years. This means that the client contacts me for all sorts of things, from work permits to travel documents to requests to expedite to changes of address. All this extra work takes time; time for which I do not charge my clients.

But since we lawyers make a living by charging for our time, it’s only fair that we get paid for the additional work. As a practical matter, though, seeking fees for this work can be difficult. Clients are already stressed due to the backlog and charging for dribs and drabs of additional work seems a bit petty. Also, raising the fees for a case makes it more difficult for clients to hire lawyers, so charging for the additional time can create an access-to-justice issue: Higher fees = fewer represented asylum applicants.

But there is a cost to the attorney for not charging. Extra work for one case means less time for another. It also means more stress in general. Maybe there is some sort of balance that can be achieved here, but I have yet to find it.

Another problem of low bono is that with less money coming in, the attorney must spend less time on each case. This is not necessarily a problem that results in less successful outcomes for the clients (because although we spend less time on each case, we do a lot of asylum cases, so we become proficient at it). However, it does take some of the pleasure out of doing this type of work. Much of the attraction of an asylum case is the human interaction. But when there is less time for each case, there is less time to spend with the client. It’s common, for instance, for a client to offer to take me to lunch or dinner after a case is granted, but I almost never go—there simply isn’t time.

In the end, of course, I am my own boss, and I set my fees in a way that (theoretically) maximizes my own happiness with my practice. I want the interesting cases and the cool clients. That is what makes the job worthwhile. The extra work caused by the backlog has made this more difficult; it has upset the equilibrium. For now, I will keep on keeping on, but if the backlog persists, I don’t know whether the “low bono” model is sustainable. I hope that it is, but with each passing day in Backlogistan, I feel less optimistic.

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Protecting Refugees Fleeing Ebola; Ignoring Refugees Fleeing Violence

by Jason Dzubow

Apparently, there was some Big News recently about immigration. I am not sure about that, but there was some other news this week, a bit under the radar, also about immigration: The United States has offered Temporary Protected Status (“TPS”) to people from Liberia, Guinea, and Sierra Leone who are currently present in the United States. The reason: Ebola.

"I'm 25% more dangerous than Ebola."
“I’m 25% more dangerous than Ebola.”

This means that people from those countries will not be removed from the United States, and they are eligible for a work permit. The TPS is designated to last for 18 months, and then could be renewed or ended, depending on conditions in West Africa (and political considerations in North America). Applications for TPS must be submitted before May 20, 2015.

How does this contrast with our current policy towards Central America and Mexico? People in that part of the world do not face a threat from Ebola, but they do face a threat from cartel and gang violence, domestic violence, and–increasingly–government-sponsored violence related to the drug trade. So here’s a question: Which of these two scenarios is more likely: A person from Liberia dying from Ebola, or a person from Honduras dying by violence? Let’s take a look at some numbers.

According to the Center for Disease Control, 2,964 people in Liberia have died due to Ebola. The total population of Liberia is 4,092,310. This means that approximately 72 out of 100,000 Liberians have died from Ebola. Compare this to Honduras, where the murder rate is about 90 per 100,000. For those of you who like numbers, this means that a Honduran person is about 25% more likely to die from violence than a Liberian person is to die from Ebola. 

The story is similar for the other TPS countries. Sierra Leone has had 1,250 Ebola deaths, with a population of 6,190,280, or about 20 deaths per 100,000 people. And Guinea has had 1,192 deaths with a population of 10,628,972, or about 11 deaths per 100,000 people.

Other Central American countries are less violent than Honduras, but still very dangerous. The homicide rate in El Salvador is about 41 per 100,000 and Guatemala is 39 per 100,000. The rate in Mexico is about 21 per 100,000, but I suspect that that figure is out-dated, as violence there has been escalating.

In other words, generally speaking, a person in Mexico or Central America is more likely to die from violence than a person from Liberia, Guinea or Sierra Leone is to die from Ebola. And yet we have offered TPS to West Africans and nothing to Central Americans. Why?

I suppose one reason is the nature of the problem. Ebola is a new threat and it is likely to be short-lived. Also, it is very frightening and its potential victims are completely innocent. Finally, there probably aren’t a whole lot of people currently in the U.S. who will qualify or apply for TPS; maybe a few thousand. Gang and cartel violence, on the other hand, is more complicated. The problem is endemic and it does not look to go away anytime soon. Victims of this type of violence might also be perpetrators, and so offering them protection can seem dangerous (though I would argue that we can effectively weed out the bad guys). Last, there are a lot of people from Mexico and Central America currently in the United States. To offer them TPS would be a long-term, large scale commitment.

Which all brings us back to the Big Announcement of the week: Deferred Action for many people who have been in the U.S. for 5+ years. This certainly is a humanitarian benefit, in that it will keep many families together. But it is not a humanitarian benefit in the sense that it was created to protect people from harm. People in Central America and Mexico are facing a crisis. Violence there is out of control. While I am glad that we are not requiring people to return to places with Ebola, I think we should recognize that there is a certain hypocrisy in offering TPS to such people while offering nothing to our Southern neighbors.

The danger faced by Mexicans and Central Americans is equal to–or worse than–the danger faced by West Africans. It’s just that the source of the danger is different. And so in the wake of the TPS and Deferred Action announcements, I am wondering whether we should be doing more to help people fleeing the gang and drug violence that is killing so many. 

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Palestinian Activist Convicted of Immigration Fraud; Supporters Cry Foul

by Jason Dzubow

Earlier this week, Rasmea Odeh, the associate director of the Arab American Action Network in Chicago, was convicted of one count of Unlawful Procurement of Naturalization. She faces up to 10 years in prison, a fine, and possible deportation from the United States.

Convincing Ms. Odeh's supporters proved easier than convincing a jury.
Convincing Ms. Odeh’s supporters proved easier than convincing a jury.

Ms. Odeh is a Palestinian who was convicted in Israel in 1970 for involvement in two bombings, one of which killed two university students in a supermarket. She was sentenced to life in prison, but she was freed in 1979 as part of a prisoner exchange between Israel and the Popular Front for the Liberation of Palestine. Ms. Odeh maintains that she is innocent of the crime, and that she was coerced into confessing under torture by the Israeli authorities.

In the mid-1990s, she immigrated from Jordan to the United States, and in 2004, she became a U.S. citizen. By all accounts, she did well in her adopted country:

Rasmea Odeh has been with the Arab American Action Network (AAAN) since 2004 and is the Associate Director and Community Adult Women Organizer…. She has worked as a teacher and then a lawyer after she completed her law degree. She gained valuable community experience through her work and service in various associations including women’s and workers’ unions, family and domestic violence groups, human right centers and the Red Cross. She created a successful community writing group at the AAAN to encourage women to tell their colorful stories and experiences while living in the United States in a creative and exciting way.

Ms. Odeh’s current troubles stem from her failure to report her conviction and sentence on her immigration and naturalization forms. Those forms ask such questions as “Have you ever been arrested, cited, or detained by any law enforcement officer… for any reason?” and “Have you ever been charged with committing, attempting to commit, or assisting in committing a crime or offense?” (emphasis in original). In response to these questions, Ms. Odeh answered “no.”

In a sense, this is an open-and-shut case. Whether or not Ms. Odeh is guilty of the underlying crime (the bombing), she certainly provided false information on the immigration forms. But of course, nothing connected to the Israeli-Palestinian conflict can ever be simple, and Ms. Odeh’s case is no exception.

The first complicating factor is Ms. Odeh’s alleged torture by Israel. This became relevant because the defense hoped to prove that Ms. Odeh did not “knowingly” lie on the immigration forms; rather, her “post-traumatic stress disorder” somehow caused her to answer the questions incorrectly. The judge disallowed this defense in a pre-trial order, and it will no doubt be one of the claims raised on appeal. To me, the PTSD defense is simply not believable. Many of my clients are torture victims and possibly suffer from PTSD, but I’ve never seen a case where the client isn’t able to answer a yes-or-no question about whether she was arrested. Maybe she does not want to talk about the arrest, but she knows it happened and can complete the form properly. Even if the judge had allowed this defense, I doubt that the jury would have accepted it.

Deprived of her PTSD defense, Ms. Odeh argued that she misunderstood the questions related to her criminal convictions. She said that she thought the questions were about her time in the U.S., and that she had nothing to hide and did not need to lie. She apparently testified about her alleged torture at the United Nations in 1979, and as her lead attorney said, “It was well known that she was convicted, and traded [in a prisoner exchange]. The U.S. Embassy knew it, the State Department knew it, and Immigration should have known it.” Neither of these points is very convincing. First, Ms. Odeh clearly had a very good reason to lie–if the U.S. government knew about her conviction on terrorism charges, she would likely have been denied a visa and citizenship. Second, her attorney’s claim that she did not have to answer the questions truthfully since the U.S. government was already aware of her conviction is simply bizarre (as if some USCIS bureaucrat in 2004 would magically be aware of Ms. Odeh’s testimony before the UN in 1979).

The most (and to me, only) convincing argument made by Ms. Odeh is that her prosecution stems from an improper government investigation that targeted Palestinian activists and others who were exercising their First Amendment rights. Ms. Odeh filed an unsuccessful motion to dismiss relying on this theory. The investigation in question was brought against 23 anti-war and Palestinian activists, and after 3+ years, has not resulted in any indictments. During the course of the investigation, the government of Israel turned over documents to the United States. It is these documents that purportedly led to the discovery of Ms. Odeh’s imprisonment (and hence the discovery that she lied on her immigration forms). The failure of the underlying investigation to reach any conclusion suggests that it might have been improper and, if so, perhaps the discovery related to Ms. Odeh was unlawful (fruit of the poison tree and all that). I suppose we will see what comes of this argument on appeal. But of course, even if Ms. Odeh is correct about the improper investigation, and even if she ultimately wins with this issue on appeal, that does not change the fact that she lied on her forms.

Finally, it is interesting to see how people’s views of the Israeli-Palestinian conflict affect their views of Ms. Odeh’s case. To her supporters, this case is about Israeli torture of Palestinians. They seem to accept Ms. Odeh’s explanation that she is innocent, that she was tortured into confessing, that any mistakes on the form were either a misunderstanding or a result of her PTSD, and that the whole case is an effort by the U.S. government to undermine the Palestinian cause.

While I largely sympathize with the Palestinian side, I find Ms. Odeh’s explanations hard to accept. To me—and apparently to the jury—the case is much simpler than all that. The question is, Did Ms. Odeh knowingly lie on her immigration and naturalization forms? The jury found that she did. Despite all the craziness surrounding her case, and whether she is a victim or a villain, the simplest and most likely explanation here is that Ms. Odeh lied about her imprisonment in order to obtain an immigration benefit from the United States. If so, she received the conviction she deserved.

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Wyoming, the “Equality State,” Is Anything But

by Jason Dzubow

There is only one state in the Union without a refugee resettlement program–Wyoming. Late last year, the state’s Republican governor, Matt Mead, took some tepid steps toward establishing a public-private partnership to help resettle refugees in the Equality State. Predictably, those efforts were met by fierce resistance, both from inside and outside the state.

WyoMing the Merciless.
WyoMing the Merciless.

First, a bit of background. The United States accepts more refugees for permanent resettlement than any other country (though many countries temporarily host significantly more refugees than we do). In FY 2012, we accepted 58,238 refugees for resettlement. These refugees came from Bhutan, Burma, Iraq, Somalia and many other countries. With the help of the Department of Health and Human Services (HHS) and various NGOs, the refugees were resettled in 49 states plus the District of Columbia. Some states took many (California: 5,173; Texas: 5,923) and other states took few (Montana and Hawaii: 1 each; Mississippi: 8; Arkansas: 10). Only Wyoming took none.

A former refugee, and now a Wyoming resident and high school math teacher, Bertine Bahige, began a campaign to change the situation and encourage Wyoming to join the rest of the country and establish a refugee resettlement program. As a result of his efforts, in September 2013, the Governor made some preliminary inquiries with HHS about establishing a resettlement program.

But once word got out that Wyoming was considering thinking about possibly creating a resettlement program, hundreds of people called the Governor’s office to express opposition to the plan. In response, a spokesman for the Governor issued a statement, “Wyoming is not setting up a refugee camp…. This is still very preliminary.”

Since its tepid beginnings, the Governor’s inquiry has made zero progress. In its most recent statement, the Governor’s office backed away from any resettlement plan:

“Constituents asked the governor to look into the possibility of a program, and he did that,” [said a spokesperson. Governor] Mead believes any effort to establish a program must be led by community interest. But… “no interested group has offered a recommendation to establish a program to date.”

Of course, the fact that there is no program and there has been no progress in creating a program has done little to assuage the anger of the anti-refugee faction. Last week, a (seemingly small) group called Citizens Protecting Wyoming, held a rally at the state capitol where they expressed their fear that refugees would bring Ebola to Wyoming, take cash from the government, and drain the state of resources.

The key note speaker at the rally was Don Barnett, a fellow at the Washington, DC-based Center for Immigration Studies (“CIS”). In a bit of a non-sequitur, Mr. Barnett claims to have “gained his expertise in immigration and refugee policy during an assignment in the U.S.S.R. while employed with the U.S.I.A. [United States Information Agency].” His organization, CIS, generally favors reduced immigration, and advocates (not always intellectually honestly) to restrict asylum and refugee admissions. Mr. Barnett’s main concern seems to be that the federal government pays charities to help resettle refugees, and he wants to bring this information “out of the shadows.” (I suppose he is less concerned about the private prisons that make Bank by detaining tens of thousands of asylum seekers and immigrants each day). Mr. Barnett is also concerned with fraud in the refugee system. Of course, fraud and costs are legitimate concerns, but so is protecting refugees, and to me, Mr. Barnett’s throw-the-refugee-baby-out-with-the-bathwater approach mischaracterizes and unfairly distorts the life-saving work of the religious charities.

In connection with the rally, Citizens Protecting Wyoming issued a press release, noting that, “The people of Wyoming are caring and generous… Yet that does not mean we are OK with being forced to increase the burden to our health, safety, welfare, medical, community and educational programs via our tax dollars.” Hmm, isn’t giving assistance to people who legitimately need it the very definition of caring and generous? You’d think they could at least be honest about who they are. How about this for their next press release:

While the citizens of Wyoming are generally caring and generous, we here at “Citizens Protecting Wyoming” couldn’t give a damn about disease-carrying, welfare-grubbing foreigners, who probably left their countries just to steal from the American tax payer. And even though the rest of the country does its share to support refugee resettlement, which is an important component of American foreign policy, we’ll let others carry this burden for us. Wyoming is the “Equality State,” and to us, that means we get equal benefits, but we shirk equal responsibility.

I take some comfort from the fact that there was a substantial counter-protest by people who support expanding the refugee resettlement program to Wyoming. In some ways, though, this is all a tempest in a tea pot. I doubt Wyoming would ever accept more than a handful of refugees (although it is a large state, it has a small population), and so in practical terms it wouldn’t mean much one way or the other. However, in symbolic terms, I think it is important. The United States has committed to protect a certain number of refugees each year. This commitment reflects our values as a nation and our position as the leader of the Free World. In fulfilling our commitment, it would be nice to see all 50 states doing their share. So come on Wyoming, we’re all waiting for you to join us. I think you will be glad you did.

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