Whatever the Election Results, There Is Work to Be Done

by Jason Dzubow

Next week is the election (in case you haven’t heard) and hopefully soon after, we will have a result. Whether the victor is Joe Biden or Donald Trump, immigration advocates have their work cut out for them.

If Mr. Trump wins a second term, it won’t be because he won the popular vote. It’s clear that more Americans will vote for his opponent (as they did in 2016). However, our system awards electoral votes by state, and states with lower populations–which tend to be more conservative–receive disproportionate representation. Perhaps there is some wisdom to this system, which disfavors change, since change is difficult and divisive, especially for those who already have power. Or maybe we would be better off with a system that is more responsive to the will of a simple majority. I am really not sure. In any event, as the President says, it is what it is.

So in terms of immigration, how would a second term look for President Trump? Since early 2017, the Trump Administration has been using its rule-making authority to restrict immigration in a variety of ways. This effort swung into high gear with the advent of the pandemic, and over the past eight months we’ve seen a barrage of changes, many of which make life more difficult for asylum seekers and immigrants. One thing we have not seen from President Trump is an effort to change the law, even when the Republicans controlled both Houses of Congress (and remember, to change the law, Congress needs to pass a bill and the President has to sign it). Because the law has not changed, President Trump has had to work within the existing law to make regulatory and policy changes. When those changes have gone beyond the bounds of the law, courts have blocked them.

“Please vote as if my life depends on it.”

Assuming President Trump wins re-election and Republicans do not control both chambers of Congress (and it is very doubtful that Republicans will take the House), it is unlikely that we would see any positive immigration reform. Mr. Trump has periodically made noise about helping the Dreamers (people brought to the U.S. as children who do not have lawful permanent status here), and so perhaps we could see some bipartisan legislation to regularize their status. Also, there are some other possible areas of cooperation on immigration (temporary seasonal workers and Christian refugees, for example), but those are quite limited.

More likely, if Mr. Trump is granted a second term, we will see more of what we saw during the first term: Travel bans, reduction of due process protections, a weaponized bureaucracy designed to make it more difficult and expensive to obtain legal status in the U.S., regulatory changes that restrict eligibility for asylum and immigration, increased enforcement by ICE, punitive strategies to deter and harm asylum seekers at the border, etc. During the President’s first term, some (but not all) of his worst attacks were mitigated by the courts–mostly the lower courts, as the Supreme Court was more deferential to the President’s authority. Now, with the confirmation of a new conservative Justice on the Supreme Court, a second Trump Administration may be even less constrained in how it (mis)treats immigrants. All this will make it more difficult for non-citizens to receive the due process and the immigration benefits to which they are entitled under law, and the protection that many need to simply survive.

Finally, and it is no small matter, if Mr. Trump is returned to office, we can expect more lies about who immigrants and asylum seekers are, and about what they do when they get here. Demonizing non-citizens, minorities, and Muslims is an essential part of President Trump’s strategy and very unfortunately, his narrative has resonated with a significant portion of the electorate. Aside from fighting the Trump Administration’s policies in court, we also have to work to undermine the false narrative that he has been pushing.

In short, I expect that if President Trump is re-elected, we will see most of his restrictive policy changes pass judicial muster and his hateful and false rhetoric continue. All this will make for a difficult and painful situation for non-citizens and many others in our country.

If Joe Biden is elected, there is little doubt that the fate of asylum seekers and immigrants will be better: We can expect an end to the attacks on due process and rule of law, and to the bombardment of lies that we have come to expect about non-citizens. Mr. Biden has promised a number of positive changes, not least of which is to roll back many of President Trump’s abusive policies. Nevertheless, even under a Biden Administration, there will be much work to do.

For one thing, while Democrats will likely hold the House, it is quite likely that they will not control the Senate, meaning that any new legislation will have to be bipartisan. On its face, this should be a good thing–the broader the consensus on a new law, the better. However, if a Republican Senate behaves as it did during the Obama Administration, we can look forward to prolonged gridlock on immigration reform (and everything else). Even in a Democratic Senate, it may not be easy to pass comprehensive immigration reform, which has eluded us for decades. Advocates will have to push for legislation with our representatives and with the public.

In addition, it’s clear that more work needs to be done to educate the public about asylum seekers and immigrants. Though advocacy groups do significant outreach, the message hasn’t landed with many people. Advocates need to think more about how to communicate effectively with those who oppose immigration–how to reach them and how to engage with them. 

For me, the choice on November 3rd is obvious. Joe Biden isn’t perfect, but he will restore due process and the rule of law to our immigration system. He will also be more honest about asylum seekers and immigrants. In addition, if he charts a moderate and common-sense course on immigration (and other issues), he might help diffuse some of the divisiveness that has grown to dangerous levels in our country. I hope that Mr. Biden is successful and that we see Democrats in charge of both Houses of Congress. But win or lose, immigration advocates will have work to do.

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Where’s My Green Card? Where’s My Work Permit?

by Jason Dzubow

What do you think would happen if a client came to my office (virtually), hired me, paid me money to file a case, and then I did not file the case and refused to return the client’s money? Here’s what I think would happen–the client would sue me to get the money back, and I might be dis-barred. Also, I could go to jail.

So what happens when a person hires USCIS to adjudicate an application for a work permit or a Green Card, pays money to the agency, USCIS determines that the person qualifies for the benefit, but then refuses to issue the document? Apparently, nothing happens. The agency keeps the money and the applicant is SOL. That is exactly what we are seeing these days for people approved for an Employment Authorization Document (“EAD”) or a Green Card.

According to a recent article in the Washington Post, “In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing [Green Cards and EADs].” “Production was slated to be insourced, but the agency’s financial situation… prompted a hiring freeze that required it to ratchet down printing.” As of early July, about “50,000 green cards and 75,000 other employment authorization documents promised to immigrants haven’t been printed.” These are documents that the applicants paid for and qualified for, and which they need to live and work in the United States.

You may be be surprised to learn that the Trump Administration won’t always give you what you pay for.

The Administration is blaming the problem on the pandemic, which it says has impacted USCIS’s budget. But that is not the whole story. Like many agencies under President Trump, mismanagement and hostility towards the agency’s mission have resulted in budget woes that long precede the coronavirus. According to an article by the Migration Policy Institute, USCIS essentially made a profit from fee receipts every year between FY2008 and FY2018 (data was not available for prior years). But starting in FY2019 (which began on October 1, 2018–well before the pandemic), the agency started running a deficit. The basic reasons are “falling petition rates… and increased spending on vetting and enforcement.” As MPI notes–

Alongside declines in petitions, USCIS has increased spending on detecting immigration-benefit fraud and on vetting applications. Anti-fraud costs more than doubled from FY2016 to FY2020, rising from $177 million to $379 million. Vetting nearly tripled during that period, from $53 million to $149 million. In addition, enhanced vetting appears to be decreasing productivity. USCIS adjudicated 63 percent of its pending and incoming caseload in FY2016. The adjudication rate dropped to 56 percent in FY2019. Over that same period, despite falling application rates, the backlog of pending petitions grew by 1.4 million, to 5.7 million. As a result, processing times for most types of petitions have increased, with some more than doubling.

According to the Washington Post, it’s not likely that USCIS’s budget will recover any time soon–

Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another The centers that collect necessary biometric data remain shuttered. These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.

Many employees at USCIS have already received furlough notices, and unless Congress steps in with a $1.2 billion fix, approximately two-thirds of the agency’s employees will be out of work by early next month. And as we’ve seen, the agency’s budget shortfall is already having an effect–more than 125,000 people have not received Green Cards or EADs, even though they paid for, and qualified for those documents (a few documents are still being produced–one of our clients received an EAD last week).

If you are waiting for a Green Card or an EAD, what can you do?

First, for anyone with a delayed card (where the card has already been approved), apparently the USCIS Ombudsman is trying to assist. If you are waiting for an approved Green Card or EAD, the first thing to do is place an online request for case assistance with the Ombudsman. You can do that here. The Ombudsman is “sending weekly spreadsheets to USCIS to verify card requests are in line to be processed.”

For people who have been granted asylum, you are eligible to work even without an EAD (using your asylum approval document or I-94, your Social Security card, and a photo ID).

If you are waiting to receive an approved Green Card, you might try calling USCIS at 800-375-5283 to request an appointment at the local field office. Field offices can place an “I-551” stamp (also called an “ADIT” stamp) in your passport, and this indicates that you are a lawful permanent resident (a Green Card holder). Due to the pandemic, USCIS offices are closed for most in-person appointments, but if you have an “urgent need” for the I-551 stamp, you may be able to obtain an appointment. An example of an urgent need might be that you will lose your job unless you have proof of status. Maybe get a letter from your employer explaining the need, so you will have that when you try to make an appointment, and when you go to the USCIS field office.

If you have a pending asylum case and are waiting to receive an approved EAD, you might also try calling USCIS. You can ask the agency to expedite the card. However, it seems unlikely that they can do so–one USCIS employee states, “Our volume of inquiries [has] spiked concerning cases being approved, but the cards [are] not being produced… A lot [of the inquiries] are expedite requests, and we can’t do anything about it; it’s costing people jobs and undue stress.” Nevertheless, since some EADs are still being issued, perhaps a call is worth a try.

Finally, you might contact your representatives in Congress (in the House and Senate). Ask them to fund USCIS, and remind them that “Congress… must also exercise its constitutional oversight authority to create and boost meaningful accountability, transparency, and productivity within USCIS.” If Congress does not get involved, USCIS will largely shut down in a few weeks. But USCIS does not deserve a blank check. Congress should ensure that the agency uses the money to fulfill its core mission, and that it gives people what they paid for.

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Why Immigrants Should Support Black Lives Matters, and How to Do It

by Jason Dzubow

For years, advocates for asylum seekers have been discussing the degradation of our nation’s immigration system: Due process protections have been eroded (or eliminated), non-violent aliens have been detained (sometimes for years), and asylum applicants and other immigrants have been subject to humiliating and cruel treatment. Why should this be so? Our immigration laws and our Constitution are far from perfect, but they provide certain rights to non-citizens, including the right to due process of law, the right not to be denied immigration benefits for reasons that are arbitrary and capricious, and the right to humanitarian protection for those who qualify. Unfortunately, the government often fails to fulfill its obligations (repeat: obligations) under the law, and as a result, immigrants are being denied their rights–including their right to life-saving humanitarian protection.

Immigrants, of course, are not the only people whose legal rights have been violated by the government. The pattern of mistreating and disenfranchising minority groups goes back to the founding of our country (and before). In many cases, discrimination has been sanctioned by law–against African Americans, Native Americans, Chinese Americans, and women, to name the most obvious groups. Slowly, painfully, over time, laws have changed. The law now provides for much greater equality than it did at the founding of our Republic, and in practice, the situation has improved. But as we know, there is much more work to be done.

Trump: “I am your law and order President. I make the law and you follow my orders!” Bible: “Owww! Stop touching me – it burns!”

The Black Lives Matter movement is a part of that work. All Americans should listen to what BLM has to say. Even those who disagree or who think they know better should listen to the lived experience of people who feel threatened by our government. No Americans should have to feel this way. Something clearly needs to change. But why should immigrants and asylum seekers care?

For one thing, many immigrants are people of color, and so the issues BLM is addressing should be of concern to non-citizens, who might one day face similar problems themselves.

Also, when the government mistreats one minority group, no minority group is truly safe. If the government has the power and the willingness to take away rights for one of us, it can take away the rights of any of us. Indeed, the whole idea of “rights” is that they are inviolable; the government cannot take them away unless we are afforded due process of law. When a government agent kills an unarmed Black man without justification or when it deports an asylum seeker without due process of law, it is violating those people’s sacrosanct rights. It stands to reason then, that if we wish to support the rights of one person, we must support the rights of all.

The above arguments are based on self interest (I will help you because it helps me). But there is another reason for immigrants to support the BLM movement–it is the right thing to do. The asylum seekers and immigrants that I have known tend to be very patriotic people. They believe in the American ideal. That is why they came here in the first place. Part of that ideal is that we are all equal in the eyes of the law. No group should face harm or discrimination due to their race or ethnicity or religion or sexual orientation. It is un-American. And it is wrong. As citizens (or would-be citizens), it is incumbent upon each of us to help our nation move towards a more perfect union.

So what can be done to help?

Education: Learn about BLM’s goals and methods from leaders of the movement, rather than from secondary sources. Good starting points are the Black Lives Matter and Movement for Black Lives websites. There are also many movies, documentaries, and books that are worth checking out.

Protest: The ongoing protests are important, and will hopefully drive legislative and policy changes. Non-citizens can attend protests, and have a right to Freedom of Speech, the same as U.S. citizens. However, you should be aware that ICE agents have been deployed in response to protests and civil unrest. While these agents are (supposedly) not tasked with immigration enforcement, that is their raison d’etre, and so if you go to a protest, make sure to have evidence about your immigration status (such as a green card, work permit, I-94, filing receipt, etc.). If you have no status, make sure to have a plan in place in case you are detained (every non-citizen without status should have such a plan, whether or not they attend a protest).

Elections: As President Obama recently said, we have to mobilize to raise awareness and we have to vote for candidates who will enact reform. Non-citizens cannot vote. Indeed, such people can be deported for voting. So if you are not a U.S. citizen, please don’t try to vote. But this does not mean that you cannot participate in the upcoming elections. There is a lot you can do: Voter registration, canvasing, text-banking, phone-banking, etc. All this is important, as the outcome of the election will have life and death consequences for many people.

Contact Your Representatives: There is currently a bill pending in the House to condemn police brutality and racial profiling. The bill makes some good suggestions, including that the Justice Department should take a more active role investigating instances of police violence and discrimination, and for the creation of civilian review boards to provide community-based oversight of local police departments. Review the bill, and if you are so moved, contact your Congressional representatives and let them know. There is another bill pending in the Senate that aims to prevent discrimination by police and provide additional training. You can contact your Senators about this bill. Also, you can take action at the state and local level to push for reform.

Donate: For many of us, money is tight these days, but if you are able to make a donation, there are many worthy civil rights organizations that could use the support.

One last point, and I think this is important, as I often hear objections about BLM in the media and in conversation: It is not necessary to support every aspect of a movement in order to support that movement. I personally do not support all the goals of the Black Lives Matter movement. I do not support all their tactics, and I do not support all their rhetoric. This does not mean that I do not support the movement. I strongly believe that our country should focus far less on incarceration and far more on providing opportunities for all people to live safe, healthy, and productive lives. I also strongly believe that our country has not properly reconciled with its past and ongoing sins against African Americans and other racial minorities. Most of all, I believe that our nation has an obligation to listen to marginalized people and to respond to their needs. Thus, even if you do not believe in all aspects of BLM, I do not think that absolves you from listening to members of that movement and of working for a better society. All of us have an obligation to help bend the arc of history towards Justice. The Black Lives Matter movement is doing just that, and its success is our nation’s success. 

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An Asylee on the Front Line of the Pandemic

by Jason Dzubow

I first met David (not his real name) in 2012. He had come to the United States from a Middle Eastern country and decided to seek asylum here. At the time, many democracy activists from his country were fleeing a government crackdown. One of David’s family members—a prominent member of the pro-democracy movement—referred him to me. David is a member of a religious minority, and he is a Biomedical Engineer by training. In his home country, he and his family members faced some pretty harrowing instances of persecution on account of their religion and their democratic leanings.

Fortunately, David’s asylum case was granted. He later became a lawful permanent resident, and he is currently in the process of becoming a U.S. citizen.

Police officers pay tribute to David and other hospital workers.

In the mean time, he obtained his equivalency degree, which allows him to work in his field in the United States (this is a somewhat obnoxious process, whereby a private agency certifies that a foreign degree “is equivalent to” a degree from an institution in the U.S.). He got a job as a Biomedical Engineer at a large hospital in the United States, and was promoted several times over the course of a few years.

When the pandemic started, David was tapped to lead a medical equipment project at the hospital’s command center, and to build up a new department to deal with the crisis. He and his team are working around the clock to receive, assemble, build, inspect, and install equipment such as ventilators, IV pumps, bed side monitors, servers, and more.

Fueled by obscene amounts of espresso, in one week, David and his team installed and uploaded drug libraries for 1000 IV pumps and installed 600 IV poles. They also installed and inspected more than 200 ventilators and 200 ICU beds. In addition, to get ready for COVID-19 patients, they prepared and installed medical equipment–such as central bedside monitors, ICU beds, nurse call devices, and ventilators–for three new departments at the hospital. All this while working in an environment where the coronavirus is a ubiquitous threat.  

Medical equipment prepared by David and his team.

I asked David how he feels about all that he has accomplished since the pandemic began, and despite the difficult circumstances, he uses words like “great” and “awesome” because, he says, he is not just doing a job, he is really helping to save lives. Also, he is proud that even though he has only been at the hospital for a few years, he is responsible for critical parts of the mission and for training a team that is working through the pandemic.

David’s work is incredibly impressive. He is helping to save many lives. But the fact is, he is not all that unique. According to a 2019 study in Health Affairs, 1 in 4 healthcare workers in the United States is foreign-born. It’s ironic that at a time when immigrants and asylum seekers are under assault by the federal government, they are playing such an outsize role in our fight against the coronavirus. I only hope that more Americans will come to appreciate how people like David are selflessly working to protect Americans from the deadly pandemic.

Espresso kept the team going.

One final point, and I think this speaks to David’s character and his bravery during this difficult time. I remember when we were preparing his asylum case, I asked him about whether he faced any harm in his country. He mentioned a few incidents and could not think of anything more. Then, his relative asked, “Didn’t the extremists shoot you?” Yes, he responded, they did try to shoot him, but the bullet passed over his shoulder and hit a wall behind him. Since they missed, David hadn’t really paid much attention to the incident. I imagine that this type of grace under fire (literally) is serving him well in his current role.

If you would like to support David in his life-saving work, consider making a donation to Direct Relief, a national non-profit that has been helping to get protective gear and critical care medications to as many health workers as possible.

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The Executive Order “Suspending Entry of Immigrants”

by Jason Dzubow

When the President issues an executive order, he first enlists experts to review the data and determine the exact nature of the problem. He then commissions a study to examine possible solutions and look at the pros and cons of each option. He carefully considers the law and takes into account dissenting points of view. His staff then crafts an order to achieve the desired ends, while avoiding as many negative externalities as possible.

I’m joking of course.

In the case of the new Executive Order, President Trump issued a late-night Tweet. Then, his staff, caught by surprise, scrambled to implement their boss’s vision and voila! An Executive Order was born.

America: Banning immigrants since 1882 (hows that working out for you?).

The new EO, issued yesterday evening, is based not on the Trumpian trope that immigrants bring disease. Rather, the order is justified based on the current economic crisis. Indeed, the title of the EO is Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. This was probably a wise move, as we are now the epicenter of the pandemic, and so it would be difficult to justify keeping people out of our country due to health concerns. The economic justification, on the other hand, will be easier to defend (recall that under the Administrative Procedures Act, courts can block a regulation that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law”). While there is ample evidence that immigrants start more businesses than native born Americans and that 51% of start-ups worth $1 billion or more were founded by foreign-born entrepreneurs, there is some (less convincing) evidence that immigration depresses wages for certain groups, such as blue collar workers. But given the low threshold of the Administrative Procedures Act, this is probably enough of a justification for the EO to pass muster, particularly in the Supreme Court, which has been very deferential to the President’s authority vis-a-vis immigration.

So let’s talk about what the EO does and–more importantly–what it does not do.

First, who is blocked from obtaining a Green Card? As far as I can tell, the only people blocked from obtaining a Green Card are those who are currently overseas and who currently do not have a U.S. visa or other travel document. Essentially, this means that U.S. Embassies will stop issuing new travel documents for immigrants to come to the United States. For immigrants who already have their visa or travel document, they can still come to the U.S. Also, spouses and unmarried, under-21 year old children of U.S. citizens are excepted from the ban and can still immigrate to the United States. Other relatives, such as parents, siblings, and older children of citizens are blocked. Also blocked are family members of Green Card holders and most people seeking residency through employment. However, the ban does not apply to medical professionals and their immediate family members, EB-5 investors, adoptees, spouses and children of members of the military, aliens entering on a Special Immigrant Visa, and aliens whose admission is in the national interest or who are assisting a law enforcement investigation. In short, this is a fairly narrowly-tailored suspension of immigration, though for those people who are blocked, it will be difficult.

Second, how long does the “suspension” last? The EO indicates that it will remain in effect for 60 days. After that, depending on economic conditions, it could be extended.

Third, it is important to understand who is not affected by the EO. People seeking non-immigrant visas are not affected. Permanent residents (i.e., people who already have a Green Card) are not affected, whether they are currently in the U.S. or overseas. No one who is currently inside the United States is affected by the EO. This includes permanent residents, asylum seekers, asylees, refugees, and people applying for immigration benefits (inside the U.S.), such as a Green Card or asylum (one exception here might be people who wish to leave the U.S. and return using a provisional waiver). Also, the EO has no effect on Employment Authorization Documents (“EAD”) or on the right to seek humanitarian protection. Indeed, the EO specifically states–

Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Fourth, there are still parts of the EO that are not clear. One important question is whether I-730 beneficiaries are subject to the ban. Based on the above language, my sense is that they will not be affected, but I am not sure. Also, I am not sure about K-1 fiances, but since the K-1 is technically a non-immigrant visa, I expect that fiance-beneficiaries will not be affected. Finally, the biggest question is whether the ban will end in 60 days, or whether it will be extended if–as seems likely–the economic crisis persists. A 60-day suspension of immigrant visas will be manageable for most effected people. However, if the ban is extended, the harm to families and business will increase significantly.

Given that embassies are already mostly closed, numerous travel restrictions are already in place, and many flights are canceled, I’d venture that the new EO will have very little real-world impact. What then is the point?

On its face, the EO is meant to protect American workers from foreign-born competitors, but given all the exceptions to the ban, I doubt the order will result in a significant drop in immigration (beyond what we’ve already seen as a result of the world-wide shutdown). Thus, even if you buy into the proposition that immigrant labor has a negative impact on the job prospects for U.S. citizens, I do not see how the EO will protect many American workers. 

If all this is correct, then the only remaining purpose of the EO is to frighten non-citizens and to delight nativists. Unfortunately, I suspect it will accomplish both of those goals. But to my immigrant friends, it is important to understand that for all its sound and fury, the Trump Administration has achieved little with this new Executive Order. Perhaps that fact can provide some level of comfort in these dark times.

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What You Can Do While Courts Are Closed: Get a Copy of Your File

by Jason Dzubow

Have an asylum case in Immigration Court and wondering what to do while the courts are closed? My friend David L. Cleveland has a suggestion: Get a copy of your file from the Asylum Office. David is a lawyer in Washington, DC. He has secured asylum or withholding for people from 48 countries. He can be reached at 1949.david@gmail.com.

In most cases, when an asylum applicant has their case denied at the Asylum Office, the case is referred to Immigration Court. There, Immigration Judges sometimes deny asylum because the applicant is deemed incredible. The applicant has told the Asylum Officer one thing, but then tells the Judge something different. There are many examples of Judges being annoyed by inconsistent asylum applicants–

  • In a New York case, the applicant was inconsistent concerning the location of children and where she was raped. Kalala v. Barr, 2020 U.S. App. LEXIS 8320 (2nd Cir. 2020).
  • in a California case, the applicant was inconsistent concerning the name of a police station. In this case, the Asylum Officer’s notes were shown to applicant for the first time during the Individual Hearing. Sun v. Barr, 2020 U.S. App. LEXIS 5397 (9th Cir. 2020).
  • In an Ohio case, the applicant testified to being beaten inside a church. When she asked about how many members of the church were present at the time, she first said 15. Later, she testified that six church members were present. Onoori v. Barr, 2019 U.S. App. LEXIS 21310 (6th Cir. 2019).
Now that he has a copy of his client’s file, David Cleveland is finally able to relax.

More generally, Immigration Judges are very interested in what Asylum Officers do and write. In a case decided in 2019, the phrase “Asylum Officer” is used 32 times. Qiu v. Barr, 944 F.3d 837 (9th Cir. 2019). In a 2018 case, the phrase “Asylum Officer” is mentioned 57 times, and “notes” (referring to the Officer’s notes from the asylum interview) was mentioned several times. Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018). In another case, from 2014, an Asylum Officer named “Kuriakose” is mentioned 15 times. Li v. Holder, 745 F.3d 336 (8th Cir. 2014).

In these cases, asylum applicant’s were deemed not credible because their Court testimony was inconsistent with their testimony at the Asylum Office. Most likely, the applicants did not have a record of what they told the Asylum Officer, and of course, since years pass between an asylum interview and an Individual Hearing, it is difficult to remember what transpired at the Asylum Office.

How can I prevent surprise in Immigration Court?

When an Asylum Officer interviews an applicant, the Officer takes detailed notes. Often, these run to 10 pages or more. Later, in consultation with his supervisor, the Officer writes an “Assessment to Refer” or an “Assessment to Grant.” This document is usually three or four pages long. If the case is referred to Court, these notes do not go to the Immigration Judge. However, they are sent to the DHS attorney (the prosecutor), who can review them and look for inconsistencies. At the Individual Hearing, the DHS attorney can use the notes to impeach an applicant’s credibility (“At the asylum interview, you testified that there were 15 people present in the church when you were beaten, but now you say there were only six. Were you lying then, or are you lying now?”).

Asylum Officers sometimes make mistakes or include unexpected information in their notes. They find some sources of information important and ignore other sources. In short, there is a subjective element to these notes that can sometimes work against the applicant and cause surprises in Immigration Court. And, as any attorney will tell you, surprises in Court are usually bad news.

To avoid a surprise in Court, and to find out what the officer wrote, the advocate should make a Freedom of Information Act (“FOIA”) request for the notes and the Assessment. Asylum Officer notes are easily available via FOIA. To obtain this information, type your request on a single piece of paper: “Give me the notes and assessment of the asylum officer.” State your name, date of birth, place of birth, address, Alien number, and sign under penalty of perjury. You do not need a lawyer; you do not need Form G-639, although you are allowed to use that form. Send your request via email to: uscis.foia@uscis.dhs.gov

In January 2020, I received the entire Asylum Officer assessment for an asylum applicant from Congo. The client and I are now more relaxed and confident about the case. We will not be surprised in Immigration Court. You can read this assessment at the FOIA page of the Louise Trauma Center.  A model FOIA request can also be found at the same page.

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The Coronavirus Is Divine Punishment for Our Sins

by Jason Dzubow

There’s a long tradition in the U.S. (and around the world) of blaming minorities for natural disasters. Conveniently, the people targeted for this type of scapegoating are usually powerless, and are often already despised by the people doing the blaming. The present pandemic is no exception. A clergyman who teaches Bible classes at the White House recently posted a piece, asking in response to the coronavirus, Is G-d Judging America Today? The predictable answer is yes, and the predictable reason is related to “sins” such as “environmentalism” (gasp!) and “homosexuality” (double gasp!). 

But how do we know which sins result in divine punishment? And what communal penalty is appropriate for a particular sin? Was 9-11 heavenly retribution for abortion (per Jerry Falwell)? Did Hurricane Katrina devastate New Orleans in retaliation for that city’s support of a gay pride parade (John Hagee)? And was Hurricane Harvey sent to drown Houston because it elected a lesbian mayor (Kevin Swanson)?

I’m not normally a fan of attributing natural disasters to human sins, but since it’s Passover–a holiday where we remember ten plagues visited upon the Egyptians for enslaving Jews–I thought I might give the whole “divine retribution” thing a try.

A group of Bible scholars protests the government’s treatment of asylum seekers.

And now that I think about it, the idea that G-d is punishing us with a virus doesn’t seem all that far fetched. After all, the Egyptians suffered boils, so there is obviously precedent for sending a disease to smite wrongdoers. But which sin would trigger a coronavirus pandemic? Certainly not the “sin” of homosexuality. That causes hurricanes. Obviously.

When you look at what’s happening in our country and the world, it seems pretty clear which sin is responsible for our current troubles–the sin of xenophobia. What’s that you say? You object? You say that xenophobia is not a sin? Let’s take a look at our handy Bible to learn more–

Exodus 12:49 – There shall be one law for the citizen and for the stranger who dwells among you.

Exodus 22:20 – You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt.

Leviticus 19:33-34 – When a stranger resides with you in your land, you shall not wrong him. The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.

Numbers 15:14-16 – There shall be one law for you and for the resident stranger; it shall be a law for all time throughout the ages. You and the stranger shall be alike before the Lord; the same ritual and the same rule shall apply to you and to the stranger who resides among you.

Deuteronomy 27:19 – Cursed be he who subverts the rights of the stranger, the fatherless, and the widow.

Etc., etc., etc. You get the idea. We are commanded–repeatedly–to treat the stranger as we treat the citizen. Those who mistreat the stranger will be cursed. So the Biblical foundation for our current troubles is clear.

But as our President loves to point out, the coronavirus began in China. Are they guilty of xenophobia? Indeed. Not long after Xi Jinping came to power in 2012, the Chinese government started implementing a series of increasingly restrictive measures against the Uyghur ethnic minority. These include forcing as many as one million men, women, and children into “re-education” camps in order to change their political and religious thinking to be more aligned with Communist Party ideology. To students of the Passover story, the persecution of the Uyghurs sounds eerily familiar–

Exodus 1:8-10 – A new king arose over Egypt who did not know Joseph [a leader among the Israelites]. And [the king] said to his people, “Look, the Israelite people are much too numerous for us. Let us deal shrewdly with them, so that they may not increase; otherwise in the event of war they may join our enemies in fighting against us and rise from the ground.”

And so the pharaoh enslaved the Jews. The rest, as they say, is history.

What about the United States? We are now the epicenter of the disease. Why are we being subject to G-d’s wrath? The obvious answer is that we have failed to treat citizens and strangers in a like manner. We have wronged the strangers who live among us. How?

Even before President Trump came to power, our country treated non-citizens and citizens differently. There are good reasons for doing so, of course: National security, preserving the welfare state, assimilating new arrivals in an orderly way. But some of the differences seemed less-well grounded in sound public policy: Mass immigration raids, private prisons, limited due process. Since President Trump’s ascension, though, our immigration policies have been driven by lies and xenophobia: Separation of children from parents, dramatically reduced protections for certain asylum seekers (particularly women fleeing domestic violence), the Muslim ban, the virtual elimination of due process at the Southern border, the draconian and nonsensical public charge rule, expansion of expedited removal, and on and on. We’ve also been subject to plenty of lies about non-citizens: Asylum seekers are rapists, criminals, and fraudsters, refugees burden our economy, Mexico will pay for the wall. Not to mention the coddling of white supremacists in Charlottesville and elsewhere. All this has resulted in a terrifying and inhospitable environment for non-citizens in the U.S. today.

Thus, it’s painfully obvious that we as a nation are failing to love the stranger as we love ourselves (Leviticus 19:34), that we are wronging and oppressing the stranger (Exodus 22:20), and that we have different laws for the stranger and the citizen (Numbers 15:14). Given all this, it’s not surprising that we have been cursed (Deuteronomy 27:19). The coronavirus is the manifestation of this curse; it is divine wrath for our sin of xenophobia. I suggest we put on sack cloth and self-quarantine for two weeks to repent.

Of course, I don’t really believe that the pandemic is divine retribution for the sin of xenophobia (or for any other sin). However, it’s hard to escape the conclusion that our mistreatment of “the other” is making things worse. Why do certain Immigration Courts remain open, forcing non-citizens and everyone involved in the system to risk their health? Why are we continuing to detain asylum seekers in unsafe conditions, even those who do not pose a danger to the community? Why do we deny economic relief to some immigrants (health care workers, agricultural workers, service industry employees) who are on the front line of the fight against the disease and who are working to keep the rest of us safe and fed?

As I see it, there is great wisdom in the words of the Bible, which make clear that we are all in this together. We will succeed or fail against the disease not as citizens and strangers, but as people, united in our common effort. The coronavirus does not discriminate based on nationality or race. Neither should we.

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Some Asylum Seekers Will Qualify for a Stimulus Payment

by Jason Dzubow

In response to the economic disaster caused by the coronavirus pandemic, Congress has passed a $2.2 trillion aid package. Part of that package includes direct payments to individuals. Most U.S. citizens and lawful permanent residents will receive a payment, but what about asylum seekers and asylees?

First, for all potential beneficiaries, the payment is dependent on your income. From the Washington Post—

Individuals with adjusted gross incomes up to $75,000 a year will be eligible for the full $1,200 check. Reduced checks will go out to individuals making up to $99,000 a year (the payment amount falls by $5 for every $100 in income above $75,000).

Married couples are eligible for a $2,400 check as long as their adjusted gross income is under $150,000 a year. Reduced checks, on a sliding scale, will go out to married couples who earn up to $198,000. Married couples also will receive an additional $500 for every child under 17.

People who file as a “head of household” (typically single parents with children) are eligible for a $1,200 check if they have an adjusted gross income up to $112,500 a year. Reduced checks on a sliding scale are available for heads of household earning up to $136,500 annually. Heads of household will also receive an additional $500 per child under 17.

You can calculate how much you and your family will receive here.

“Imagine how much TP I could buy with $1,200.00!”

Second, assuming you qualify for the payment based on your income, you must also have a valid Social Security number. For married couples, it seems that both spouses must have SSNs. According to the Tax Policy Center, “If one spouse has an SSN, but the other does not, the couple is ineligible for the payment (there is an exception for military families).”

Third, you would have had to file taxes for 2018 or 2019. If you did not file, you are ineligible for the payment. However, if you were not required to file taxes in those years, you can now file a “simple tax return” in order to establish your eligibility for the payment (presumably, this means filing the IRS form 1040 or the 1040-SR if you are over 65 years old). For those who should have filed taxes in 2018 or 2019, but failed to file, you can file now and still qualify for the payment. The IRS urges people who file to include direct deposit banking information on their tax return, in order to facilitate the payment.

Also, if you need help with issues related to back taxes and filing, you may be able to get assistance from your local Low Income Tax Clinic (many of which are apparently still operating in some capacity through the pandemic).

Fourth, to qualify for the payment, you must be a U.S. citizen or a lawful permanent resident (i.e., a Green Card holder) (though some LPRs who have spent significant time outside the U.S. might not qualify for the payment). Others who reside lawfully in the U.S., such as asylees and asylum seekers, may also be eligible for the payment, as long as they are not “nonresident aliens,” as defined (in a very confusing manner) by the IRS. According to the Internal Revenue Service—

An alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test.

The Green Card Test states that an LPR is considered a resident of the United States for tax purposes (and is thus eligible for the stimulus payment) as long as he or she spent at least one day in the U.S. during the relevant tax year.

The Substantial Presence Test is a little trickier. For that, you need to have at least 31 days in the United States during the current year and 183 days in the U.S. during the three-year period that includes the current year and the two years immediately before that. However, when counting towards the 183 days, days in prior years count for less, according to the following formula—

A. Current year days in United States x 1 =_____days

B. First preceding year days in United States x 1/3 =_____days

C. Second preceding year days in United States x 1/6 =_____days

D. Total Days in United States =_____days (add lines A, B, and C)

If line D equals or exceeds 183 days, you have passed the183-day test.

So for example, let’s say you were physically present in the U.S. for 120 days in each of the years 2017, 2018, and 2019. To determine if you meet the substantial presence test for 2019, count the full 120 days of presence in 2019, 40 days in 2018 (1/3 of 120), and 20 days in 2017 (1/6 of 120). Since the total for the three-year period is 180 days, you are not considered a resident under the substantial presence test for 2019, and would likely not qualify for the stimulus payment. A word of caution here: I am not a tax lawyer (thankfully) and so there may be arguments to make here in order to qualify for the payment. If you do not receive the payment and feel you should have, you may want to seek help from a tax professional.

My sense from all this is that asylees and asylum seekers who have been here and paid taxes in 2018 and/or 2019 will likely qualify for the payment (unless they have spent substantial time outside the U.S., which is rare for such people). Asylum seekers and asylees who have been in the U.S. for a shorter period of time, or who did not have a work permit until recently (or who did not yet get a work permit) will likely not qualify for the payment.

If you do qualify, you should not have to do anything to receive the payment–it should be credited to your account or mailed directly to you. Some people–such as those who did not pay taxes in 2018 or 2019–may need to take action, as discussed above. Also, the IRS has created a webpage to provide updates and information about the stimulus payments. At present, the webpage is pretty sparse, but the IRS says it will be updated with additional information soon.

One final point, asylees and asylum seekers are not subject to the “public charge” rules that went into effect in February. Therefore, receiving this payment (or any other type of assistance, including unemployment benefits or means-tested aid) will have no effect on an asylum case, or on an asylee’s application for a Green Card. For non-asylees, it seems pretty clear that the stimulus payment and unemployment benefits would not impact the public charge analysis. Other types of benefits could create a public charge issue (again, this is for people who are not asylees or asylum seekers). Talk to a lawyer if you are not sure or need help with this.

To say the least, these are difficult times for everyone. But the situation is particularly hard on those who are most vulnerable, including many immigrants and asylum seekers. I hope that the stimulus program will provide help to those most in need, and that we will see better days ahead soon.

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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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A Doctor’s Mission – and How You Can Help

by Jason Dzubow

Kate Sugarman is a family physician in Washington, DC. Here, she writes about her experience assisting detained asylum seekers who have health problems, and she invites you to join her and Doctors for Camp Closure for a lobby day and march on October 18 and 19, 2019.

In about 2005, I learned that if I can properly document scars of torture for someone who is seeking asylum, it greatly increases the odds of their being granted protection. So began my passion for human rights medicine and working to bring justice to immigrants seeking asylum in the United States. I have interviewed, examined, and written up forensic evaluations for well over 600 immigrants seeking asylum. All of these people have either been granted asylum or their cases are still pending.

Over the past several years, I have also been asked to go into ICE detention centers to document scars of torture for immigrants seeking asylum. Most of these people were detained upon entering the U.S. They have not committed any crimes, and are being held only because they have requested asylum in the United States.

Dr. Sugarman’s prescription for good health: Eat right, exercise, and stay away from ICE.

During the summer of 2018, like many other Americans, I became upset over family separations happening to those arriving at the ports of entry along the Southern border. I reached out to human rights doctors and lawyers and I became aware that many immigrants being detained in ICE facilities were being denied necessary medical care. I started building a medical-legal partnership, in which lawyers who were working with individuals being denied medical care while being held in detention could contact our group of doctors for an assessment of their client’s medical risk as a result of having appropriate care withheld. We then wrote medical letters to ICE to describe our findings, as a means of advocating for detainees to receive the care they needed and deserved. Some of our letters included medical assessments, such as “Denying HIV infected people their HIV pills would result in their getting sick and dying from a treatable illness,” “Denying surgery for a growing and painful inguinal hernia puts a patient in terrible pain and in grave danger,” and “Not treating a patient with a deep osteomyelitis that is now oozing large amounts of pus and giving her a fever will cause her to die from a treatable condition.”

Until a few months ago, more than half of these letters resulted in the person getting released. That is no longer the case, as ICE is now refusing to release asylum seekers, even if they are severely ill. As a result, I am shifting my energies, though I continue to work on behalf of detained immigrants who are being denied health care.

One case I worked on recently was for a man named Yoel, who is seeking asylum from Cuba and whose case was profiled on NPR. His lawyers contacted me because they were hoping I could get him released based on his untreated medical condition. He had been detained in Louisiana. He has a lung mass, which is quite suspicious for lung cancer. Instead of giving him a lung biopsy, which is the standard approach in this situation, ICE kept moving him back and forth from Louisiana to Mississippi. Despite a nationwide outcry from many doctors and members of Congress, he was deported, even though his wife is a U.S. resident living in Florida. Two days later, the U.S. Supreme Court ruled that people arriving at the Southern border to request asylum have to wait in extremely dangerous conditions in Mexico without being allowed to enter the United States.

A few days later, I testified on behalf of a woman seeking asylum. Since she is not being provided appropriate medical care, her neurological degenerative disease is getting worse. The judge spent most of his time grilling me over details that had no relevance at all to what I was trying to tell him. In that case, we are still waiting for a decision and the asylum seeker is still behind bars.

Which leads me to why I joined D4CC – Doctors for Camp Closure. There is no healthy amount of time for any man, woman or child to be behind bars, denied the basics of human health and dignity. Seeking safety and asylum in the United States should not result in inhumane, dangerous incarceration. We have already seen the results with multiple adults and children dying in ICE custody.

Please join us Friday October 18, 2019 as we lobby Congress for the health and safety of immigrants. Our March for Migrants in Washington, DC on Saturday October 19 is open to everyone who shares our concerns. Spread the word and let’s work together to put an end to mass incarceration of people who deserve care, not condemnation.

You can find more information about D4CC and the upcoming events here:
Facebook: https://www.facebook.com/groups/915776502154354/
Twitter https://twitter.com/Doc4CampClosure
Instagram: @Doctorsforcampclosure
Website: https://d4cc.squarespace.com

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President Trump’s Attack on Ilhan Omar Is an Attack on All Naturalized Citizens

by Jason Dzubow

This is a guest post by Katharine Clark, Managing Attorney for Immigration at the Silver Spring, MD office of Ayuda. She has previously worked on citizenship and nationality issues at the U.S. Department of Justice. The views and opinions expressed herein are solely those of the author, and not necessarily those of any organization, employer, or agency.

On July 14, President Trump tweeted that four members of the House of Representatives – known as “The Squad” – should “go back” to “the crime-infested places from which they came.” The tweet targeted three representatives who were born in the United States, and one naturalized citizen, Rep. Ilhan Omar.

Given Omar’s naturalized status, it’s no accident that Trump and his supporters have settled on her as the long-term focus of their racist ire, chanting “Send her back!” at subsequent rallies beginning on July 17, in reference to Omar alone.

Katharine Clark

Much ink has already, rightly, been spilled about how Trump’s tweets and the crowd’s chants were racist, Islamophobic, detrimental to national rhetoric, and offensive to refugees and naturalized citizens. For example, the LA Times in July focused on how the racialized aspects of Trump’s immigration policies, including his denaturalization task force, are likely to suppress political opposition because these efforts are disproportionately concentrated in jurisdictions where naturalized citizens tend to vote Democratic. Jelani Cobb in the New Yorker explored how Trump’s rhetoric aligns with past efforts in the U.S. to make citizenship provisional for non-whites, U.S.-born and naturalized alike.

These are important points, but I believe there is another, more specific legal action that Trump may be proposing in his ongoing comments about Rep. Omar. He is not just using his tweets to energize his base in advance of the 2020 election. More particularly, I believe Trump and his followers are calling for Rep. Omar to be denaturalized and removed to Somalia.

The Legal Context of “Send Her Back”:

There are two ways to lose United States citizenship. Any U.S. citizen, born in this country or naturalized, can voluntarily renounce citizenship under 8 U.S.C. § 1481. However, renunciation requires a citizen to follow strict procedures for abandonment (it is also possible to lose citizenship after a conviction for treason or a similar criminal offense).

Unlike renunciation, which is initiated by the citizen, denaturalization is a civil action initiated by the federal government under 8 U.S.C. § 1451. To denaturalize a citizen against his or her wishes, a federal court must find that the citizen’s naturalization was illegally procured or procured by willful misrepresentation of material fact.

If a person willfully misrepresents a material fact on a naturalization application, or on the application for a green card that preceded the naturalization application as required under 8 U.S.C. § 1421(c), that misrepresentation can provide a basis for denaturalization many years later. Not only that, the consequences can pass from generation to generation. Under 8 U.S.C. § 1451(d), children who naturalized through their parents can be denaturalized if their parents are found to have procured their naturalization through willful misrepresentation of a material fact.

History of Denaturalization:

Historically, denaturalization actions have been extraordinarily rare. These cases were primarily instituted against war criminals, such as Nazi concentration camp guards, who hid their crimes when they applied for green cards or citizenship. The New York Times reported that from 2004 to 2016, the Justice Department initiated only 46 denaturalization cases.

Denaturalization cases are not only rare, but also difficult for the government to win. This is true by deliberate judicial design. In denaturalization cases, courts hold the government to a very high burden of proof and do not afford great deference to lower court findings of fact on appellate review. Baumgartner v. United States, 322 U.S. 665 (1944); United States v. Zajanckauskas, 441 F.3d 32, n.5 (1st Cir. 2006). As the Supreme Court explained, “rights once conferred should not be lightly revoked,” particularly where the right in question is as “precious” as citizenship. Schneiderman v. United States, 320 U.S. 118, 125 (1943).

Ultimately, then, denaturalization has long been reserved for people who told serious lies, often about their crimes against humanity, in order to become citizens. In other situations, citizenship has been treated as a settled question once naturalization occurs.

Denaturalization Task Force:

This trend began to shift in 2018, when the Trump administration created a denaturalization task force within United States Citizenship and Immigration Services, to review the A-files of naturalized citizens for previous fraud. In the first few months of its existence, the LA Times reports, the task force referred at least 100 cases to the Justice Department for initiation of a civil action.

In some ways, the administration’s focus on denaturalization is simply one small part of the United States’ long history of failing to respect citizenship rights. This history includes laws denying birthright citizenship to Americans of Chinese descent, and forced “repatriation” of US citizens of Mexican descent during the Great Depression.

However, Trump’s threat to Rep. Omar is also uniquely insidious. If Trump is, indeed, calling for Rep. Omar’s denaturalization, we are witnessing the chief executive of our nation, calling for the denaturalization of a duly elected representative on account of her race, religion, and political opinion. This is, to my knowledge, unprecedented.

Trump’s history of policy-making by tweet demonstrates why this threat is so serious and sinister. In this context, Trump’s tweet can be seen as a directive to the U.S. Attorney for the District of Minnesota, to USCIS, and to the Office of Immigration Litigation, to investigate and prosecute Rep. Omar for denaturalization. Ken Cuccinelli’s new role at the helm of USCIS does nothing to reassure me, given his 2008 attempt to repeal birthright citizenship while serving in the Virginia legislature, by calling for a Constitutional convention.

Ilhan Omar:

One’s opinion of Rep. Omar’s politics simply do not matter here. I have never seen her immigration file and I am not her attorney, so I have no specific insight into her case.

What is clear from press reports about her naturalization is that, if there were any problems with her immigration or naturalization, they would have occurred before she was old enough to play any meaningful part in the process. Media reports all indicate that Rep. Omar was born in 1982 in Mogadishu, came to the U.S. in 1992, received asylum in 1995, and naturalized in 2000 as a 17-year-old child.

This means that Trump is explicitly threatening, and implicitly assigning his task force to investigate, the possibility of bringing an extraordinarily rare denaturalization action, historically reserved for war criminals, against a political opponent based on immigration applications filed when she was a child.

If the Administration today threatens to denaturalize duly elected representatives, who have the protections of visibility, it will not only make all naturalized citizens provisional, and second-class under the law. It will also demonstrate the Administration’s full intention to use citizenship – by birth and naturalization alike – as a weapon of political war. If this does not make us concerned for the very foundations of our democracy, then we are not paying attention.

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The Art of Migration (and a Bit of Housekeeping)

by Jason Dzubow

An ambitious multi-media exhibit at the Phillip’s Collection in Washington, DC explores the “experiences and perceptions of migration and the current global refugee crisis.” The exhibition, called The Warmth of Other Suns: Stories of Global Displacement, presents the work of 75 historical and contemporary artists “from the United States as well as Algeria, Bangladesh, Belgium, Brazil, Egypt, Ghana, Iraq, Lebanon, Mexico, Morocco, Syria, Turkey, UK, Vietnam, and more.” Many of the artists are themselves refugees, and this lends power and authenticity to the show.

My office mates and I took a field trip to the Phillip’s to check out the exhibit, which consists of “installations, videos, paintings, and documentary images.” There’s a lot to see, and a lot to read–each artist has a story, and for me at least, learning about that story helped me understand what I was looking at. Most of the art is individually interesting and it would be easy to linger with each piece, but in this case, the sum of the show exceeds its parts. Indeed, the great strength of this exhibit comes from its diversity–diversity in experience, place, and time.

A photo from the exhibit, showing migrants waiting for a plane that never arrives (either that, or it’s a bunch of people boarding Wonder Woman’s jet).

The curators have anchored the show with a display of Jacob Lawrence’s Migration Series: 60 or so paintings depicting the Great Migration of African Americans from the American South to the North. Between about 1920 and 1970, more than six million people moved North to escape poverty and racism (or, more accurately, they moved to escape from severe poverty and racism in the South to somewhat less severe poverty and racism in the North). The Migration Series is a part of the museum’s regular collection, but placing it in the wider context of The Warmth of Other Suns adds to its emotional impact and gives it a sense of universality that is less obvious when it is viewed individually.

Other powerful exhibits include a video installation showing a conversation with elderly Central American parents whose son left for the United States. We hear their perspective of the son’s journey–phone calls from different stops along the road, and then finally nothing. The parents learn later that their son has died on the journey. The devastation of their loss is haunting. The mother can’t even speak about it. She talks about the weather and the coffee harvest instead, and somehow, this is harder to watch than a direct accounting of her son’s demise.

Another room has a floor covered in clothing. On the wall is a large photo of a rough ocean. The clothes are blue, indicative of the sea, and they represent the unnamed and unseen migrants who were lost while crossing the Mediterranean (thousands of migrants die each year on their journeys, many in the Mediterranean Sea). On the wall of this room are three world maps, but by a different artist. This artist commissioned Afghan seamstresses to sew the maps. Each country is represented by its colors or part of its national flag. The maps–with their distinct borders between countries–contrasts with the scattered clothing, lost in the liminal space between nations.

Another exhibit is a video of a young boy from Syria. He is deaf and mute, and he looks to be about 12 or 13 years old. He fled Syria after the Islamic State attacked his home town. Unable to speak, the boy describes the attack with gestures and facial expressions. The artist writes, “The power of his body language [has] made any other language form insufficient and insignificant.” I am not sure about that, but his non-verbal description certainly renders any other language form redundant, as it is all too clear that this boy has witnessed and suffered a trauma that no child (and no adult) should ever have to experience.

A more lighthearted exhibit called Centro de Permanenza Temporanea or Center for Temporary Permanence (pictured above) shows a group of migrants climbing an airport boarding ladder for a plane that never arrives. This exhibit symbolizes the inability of Western countries (here, Italy) to return their “unwanted” migrants, who are left to wait and wait.

For me as an attorney who represents asylum seekers, this exhibit was challenging. Our cases are serious and the stakes are high (indeed, just this week, I heard about a colleague’s client who was murdered after having been deported by an Immigration Judge). To do these cases effectively, we need a certain level of detachment (to preserve our sanity) and objectivity (to properly evaluate and prepare our clients’ cases). These qualities serve us well in the practice of asylum law, but they are the opposite of what is needed to appreciate an art exhibit about migration. But by lowering my defenses and engaging with this art, I find that it provides inspiration and serves as a reminder of why we do what we do.

For those who are not immersed in the world of migration, I think the great power of this art is that it gives voice to people who are frequently voiceless, and humanity to people who are too often used as political pawns (“invaders!” “rapists!”). The Warmth of Other Suns is a thoughtful and sobering testament to those who have journeyed–willingly and unwillingly–in search of a better life.

The exhibition runs through September 22, 2019. For more information, and to see some of the art, click here.

PS: The title of this blog post was shamelessly stolen from my friend Sheryl Winarick, who drove across Eurasia to document various communities and their experiences with migration. Learn more about her journey here.

PPS: I almost forgot the housekeeping. I will be off-line from about August 16 to 25, 2019. So if you post questions or comments, I will try to answer them after that time.

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Five Asylum Jokes

by Jason Dzubow

(1)

An asylum seeker is tired of waiting for her interview, and so she goes to the Asylum Office to inquire about her case.

Asylum Seeker: I’ve been waiting forever for my case. Can you please tell me when I can expect an interview?

Officer: You’re in luck–we have a new system and we can tell you precisely when your asylum interview will be held. Let me check… Hold on… Ok, I see that your interview will be in exactly two million years.

Asylum Seeker: What?!!? When will my interview be?

Officer: In exactly two million years.

Asylum Seeker: Oh, thank goodness! I thought you said two billion years.

(2)

A Trump supporter stands outside the Immigration Court and waits for an asylum seekers to arrive for his hearing.

Trump Supporter, yelling at the Asylum Seeker: All our troubles come from the asylum seekers!

S.O.L.

Asylum Seeker: That’s right – from the asylum seekers and from the bicycle riders.

Trump Supporter: From the bicycle riders? Why from the bicycle riders?

Asylum Seeker: Why from the asylum seekers?

(3)

Two DHS attorneys board a plane to the Federal Bar Association conference in Memphis. One sits by the window and the other sits in the middle seat.

After a few moments, an asylum attorney sits down in the aisle seat. The asylum attorney makes himself comfortable, takes off his shoes, and leans back in his chair.

Suddenly, the DHS attorney by the window gets up, and states, “I think I’ll get a Coke.”

The asylum attorney in the aisle says, “No worries – I’ll get it for you.” He walks to the back of the plane to get the soda. While he’s gone, the DHS attorney spits into the asylum attorney’s shoe. The two DHS attorneys can barely keep from giggling as the asylum attorney returns to his seat, and hands over the Coke.

The DHS attorney in the middle seat then says, “That looks good. I think I’ll get myself a Coke too.”

Again, the asylum attorney offers to run down the aisle and grab another Coke. While he’s gone, the second DHS attorney spits into the asylum attorney’s other shoe. Once again, the DHS attorneys suppress their laughter just in time, as the asylum attorney returns with a second Coke.

The flights proceeds uneventfully from there, and lands on time in Memphis. On the ground, the asylum attorney slips into his shoes. Immediately, he realizes what’s happened. “How long must this go on?” he asks. “The fighting between our two sides.” “The hatred? The animosity? The spitting in the shoes and the peeing in the Cokes?”

(4)

A Syrian refugee walks into a travel agency in Amman. The agent greets her and asks, “Where to?”

“Where to?” the refugee repeats thoughtfully. “I wish I knew. Let me look at your globe.”

The Syrian refugee slowly spins the globe around, looking carefully at the different continents and countries. After a few minutes, the refugee turns to the travel agent. “Pardon me,” she asks, “but do you have anything else to offer?”

(5)

During the Second World War, after three months of waiting in Casablanca, a Jewish asylum seeker named Lowenthal had almost given up hope of getting a visa for the United States. The U.S. consulate was constantly filled with refugees, and it was virtually impossible even to get an interview with an American official. Finally, Lowenthal was able to make an appointment.

“What are my chances of entering your country?” he asks.

“Not very good, I’m afraid,” said the official. “Your country quota is completely filled. I suggest you come back in ten years.”

“Fine,” replied Lowenthal. “Morning or afternoon?”

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On the Morality of Deporting Criminals

by Jason Dzubow

National Public Radio recently reported on the Trump Administration’s efforts to deport Vietnamese refugees with criminal convictions. Currently, Vietnam only accepts deportees who entered the United States after 1995, but the Trump Administration wants to convince Vietnam to accept all of its nationals with removal orders, regardless of when they came to the U.S. If Vietnam agrees, the change could affect more than 7,000 refugees and immigrants, some of whom have been living in the United States for over 40 years. Not surprisingly, negotiations over this issue have stoked severe anxiety in segments of the Vietnamese-American community.

The NPR piece focuses on an Amerasian man named Vu, who was ordered deported due to his 2001 convictions for larceny and assault. The convictions have since been vacated, but the deportation order apparently remains. Amerasians are children of American soldiers and Vietnamese women. They face severe persecution and discrimination in Vietnam, and Vu still fears return to his native land. If Vietnam ultimately agrees to the Trump Administration’s proposal, Vu could be returned to his birth country. “I think about it often and I don’t want to be deported,” Vu says, “I wouldn’t be able to see my children. I would lose everything. I would miss most being around my kids.”

“Seeking forgiveness for old sins? Don’t hold your breath.”

Legally, people like Mr. Vu, who have a removal order, can be deported (assuming their country will accept them, and assuming they cannot come up with a new defense against deportation). But what about morally? When–if ever–is it morally acceptable to deport criminals?

For me at least, this is a difficult question to answer. As a starting point, I must note that it is not easy to apply morality to any aspect of the immigration system. There certainly is a moral component written into the Immigration and Nationality Act (“INA”). For example, to receive asylum and many other immigration benefits, an applicant must show (among other things) that he deserves relief as a matter of discretion. Good people deserve a favorable exercise of discretion; bad people do not. The problem is that, how we define “good” and “bad” bears only a passing relationship to morality, as we might normally imagine it, and so referencing the “moral component” of the INA only gets us so far.

Another problem exists with regard to how the INA delineates gradation of criminal conduct. You would think that the worse your conduct, the more likely you are to be deported, but that ain’t necessarily so. Crimes that might seem more worthy of deportation are sometimes less likely to result in immigration consequences. Put another way, under U.S. immigration law, you might be better off killing your mother than possessing cocaine.

The point is, it is very difficult to understand how morality applies to aliens with criminal convictions, at least when speaking in the abstract. It is easier–at least in my opinion–to approach the problem by looking at a specific case, and working from there. So let’s look at the example of Mr. Vu from the NPR piece.

First off, Mr. Vu’s case is quite sympathetic. His crimes occurred a long time ago, the convictions were vacated, he has U.S.-citizen children, and if deported, he faces persecution. Also, Mr. Vu might argue that his prior crimes were a consequence of his difficult upbringing (and few people have had a more difficult time than Amerasians during the post-war era in Vietnam). In addition, Mr. Vu has been in the United States for a long time, and so perhaps America is more “responsible” than Vietnam for setting him on a criminal path. Finally, as an Amerasian, Mr. Vu would not even exist if the U.S. hadn’t been present in Vietnam, and so this might also constitute a reason that we–and not Vietnam–are responsible for him.

On the other hand, Mr. Vu committed some serious crimes (larceny and assault), which harmed other people. He would likely have been deported in 2001 (per an Immigration Judge’s order), but was able to remain here only because Vietnam was not accepting its nationals for repatriation at that time. Further, as a sovereign nation, we have a right to determine who gets to stay in our country, and Mr. Vu violated that covenant. Worse, Mr. Vu likely came to the U.S. through a program to assist Amerasians. If so, we brought him to our country, only to have him turn around and slap us in the face by committing crimes. Finally, if we give Mr. Vu a pass, won’t that send a signal to other aliens that they can come to our country, commit crimes, and avoid the immigration consequences?

As I see it, there are legitimate reasons to deport Mr. Vu, and legitimate reasons to allow him to stay. Of course, making a moral determination in his case–or any case–hinges on how we balance the competing interests. The all-or-nothing nature of our immigration system compounds the challenge of reaching a fair conclusion: Either Mr. Vu gets deported, or he gets to stay. There is no middle ground.

Though I know where I stand on the case, I am not so sure that there is a correct answer here. Maybe it depends on one’s individual moral code. For what it’s worth, if we could somehow rate criminal-immigration cases, I think Mr. Vu would land on the more sympathetic side of the continuum. So if you believe Mr. Vu should be deported, there are probably few criminal-aliens who you believe deserve to remain in the U.S.

So is it morally right to deport Mr. Vu? Or any person with a criminal conviction?

For me, the answer to these questions is tied to the immigration system in general. I have seen far too many examples where non-citizens and their families are severely harmed for seemingly arbitrary reasons. If we had a more fair, more just, and more rational immigration system, I would have less of a problem with deporting criminals. But given the system that we are stuck with, it is difficult for me to morally justify most deportations. That is doubly true in a case like Mr. Vu’s, where his prior bad behavior has apparently been long overshadowed by his current equities. To deport Mr. Vu and break up his family seems cruel and pointless. But sadly, that is often exactly what we get from our current immigration system.

I hope that the Trump Administration will abandon its plan to remove Vietnamese refugees, especially Amerasians. But if it persists, and if Vietnam agrees, I hope that Mr. Vu–and others like him–will fight to remain here. He has been here for decades, his family is here, and this is his home. Despite his criminal acts, I believe he belongs here. To send him away would be immoral.

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