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

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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Asylum in a Time of War

by Jason Dzubow

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

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

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

Enrico Fermi (left) also invented the Photo Bomb.

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

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

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

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

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

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

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

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Future Has Arrived

by Jason Dzubow

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

Postcard from the Apocalypse: November 29, 2019

BEGIN TRANSMISSION:

If you’re reading this, maybe there’s still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end. 

This is how the Immigration Court backlog ends.
This is how the Immigration Court backlog ends.

I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could have—could still—turn out differently. 

What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.

“What was it, then?!” you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity–a black hole, if you will–that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that’s left is me and a few others. We don’t have much time. 

It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didn’t they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration Court—No two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?

Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didn’t think it was a big deal. They were violating the alien’s due process rights, but only a little. And it was for a good cause—efficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen. 

And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single day—November 29, 2019. They claimed this was some sort of “holding” date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind! 

Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came. 

EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didn’t. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose we’ll never know, and anyway, it doesn’t much matter. 

The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn’t only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B’s, TN’s, and L’s, Q’s and R’s, H1-B’s and E’s, all varieties of A’s and J’s, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.

And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path–a black hole. But like I say, if you’re reading this, there’s still hope. There is a simple solution to the Immigration Court backlog. It’s so obvious, that it’s a wonder no one noticed it before. All you have to do is…

ERROR ERROR ERROR END TRANSMISSION 

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

by Jason Dzubow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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What to Expect When You’re Expecting an Asylum Interview

by Jason Dzubow

So, you’ve decided to file for asylum. Let’s talk about what happens on your journey as an affirmative asylum seeker.

Once you mail in the I-589 form, you should receive a receipt in about three or four weeks (though lately, this has been taking longer). After that, you and any dependent family members will be scheduled for a biometric appointment, where the government will take your fingerprints and your photo. For the biometric appointment, each person should bring their appointment letter and a photo ID, usually a passport.

Next, you will have an interview. Some Asylum Offices are faster than others, so in some cases, you will only wait a few weeks or months for your interview; in other cases, you may wait years. If you do not receive an interview within about 90 days of filing, you can be pretty confident that your case is in the backlog. Currently, there are well over 300,000 cases in the affirmative asylum backlog, and most new cases seem to end up in the backlog.

A computer determines at random who will get an asylum interview.

Why does one applicant land in the backlog while another receives an interview relatively quickly? My understanding from talking to my local Asylum Office Director is that it is completely dependent on luck. It does not matter what country you come from, or how strong your case is. It does not matter whether or not you have a lawyer. The Asylum Office staff determines how many interview slots they have for a given day, and a computer randomly chooses which cases, from the pool of newly-filed LIFO cases, will be interviewed.

If you end up in the backlog, how long will you wait? No one knows. The government does not know. The people working at the Asylum Office do not know. And I certainly don’t know. The basic reason for the backlog is that there are too many asylum cases and too few Asylum Officers. The Asylum Division has been trying to “staff up” for some time, and they are having some success. As more Officers come online, we might see progress on the backlog. Also, as you may have heard, the Trump Administration is working overtime to block asylum seekers from coming to the U.S. If there are fewer asylum seekers, we could also see progress on the backlog. Despite all this effort, the backlog continues to grow.

If your case falls into the backlog, there are a few things you can do. You can try to expedite the case. This is not easy, and even people with a strong reason to expedite are often rejected. The best reasons to expedite are where the applicant has a health problem or there is family separation, especially if the family members are unsafe. Even if you do not have a strong reason to expedite, you can still try–once in a while, applicants get lucky. Also, some offices have a short list. This is usually a long list of people who have agreed to accept an interview on short notice if there happens to be an opening. Putting your name on the short list will not necessarily get you a faster interview, but it might. You can contact your local office to find out whether they have a short list. If you put your name on the short list, make sure that all the evidence is submitted, so you are ready to go in case you get called. Attempting to expedite or put your name on the short list will never make your case slower–either it will be faster or there will be no effect.

If you do not get an interview, or if you do get an interview and there is no decision, you may be eligible for an employment authorization document (“EAD”), which allows you to work legally in the United States. You cannot file for your EAD immediately. Instead, you have to wait 150 days after the I-589 form is received by the government (the “received” date is listed on your receipt). Do not file before the 150th day, or the EAD application could be rejected as filed too early. Also, if you cause a delay in your case (by missing a government appointment, for example), or if you have certain criminal convictions, you may be ineligible for the EAD. Check the EAD instructions for more information. If you do not have an EAD, you cannot work lawfully in the U.S. Even the receipt for the initial EAD does not allow you to work. People who work unlawfully are not precluded from receiving asylum, but unauthorized employment could block you from other immigration benefits. When you file for the EAD, you can request a Social Security card on the same form.

Once you have an EAD, it is valid for two years. You can renew an expiring EAD up to 180 days before the old card expires. When you receive your receipt to renew, your old EAD will be extended by 180 days. Renewals can take a while, so it is a good idea to file the renewal soon after you are eligible.

While your case is pending, you can apply for Advance Parole (“AP”), so you can travel outside the United States and return. USCIS does not always approve AP, and sometimes, they only grant it for a short period of time, but if you have it, it acts like a U.S. visa. You still need to use your passport to travel, and this can create issues for asylum seekers, especially those who fear harm from the same government that issued the passport. And of course, asylum seekers should not return to the country of feared persecution, as that could kaibosh your asylum case.

Also, while your case is pending, if you move, you need to file a form to change your address. Depending where you move, this could cause your case to be transferred to a different Asylum Office. If the case moves to a new office, it should not cause additional delay and should be treated as if it were originally filed in the new office.

What if you do get an interview, but there is no decision? The most common reason for post-interview delay is the security background check, but there could be other reasons as well. You can contact the Asylum Office directly to ask about the delay, or you can ask your Congressperson or Senator to do that for you. You can also seek assistance from the DHS Ombudsman’s office, which can sometimes help with delayed cases. None of these approaches seems very effective to me, but there is no harm in trying. If all else fails, you might consider a mandamus lawsuit. This is where you sue the Asylum Office and ask a federal judge to force them to issue a decision.

In the end, you will either be granted asylum, or your application will be rejected. If you are rejected, there are two choices: If you are no longer in lawful status in the U.S., you will be referred to an Immigration Judge, who will review your case and issue a new, independent decision. If you are still lawfully present in the U.S., you will receive a Notice of Intent to Deny, be given an opportunity to respond, and if the Asylum Office still cannot approve the case, they will issue a final denial. In that case, you are expected to leave the U.S. when your lawful period of stay ends, but you can re-file asylum (the process is different – check the I-589 instructions) or you can seek other ways to remain here.

So that is the affirmative asylum process in a nutshell. The system is a mess, and it is helpful to know that before you begin. Perhaps this knowledge will make the process a bit easier to endure.

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USCIS – The (Mostly Awful) Year in Review

by Jason Dzubow

Earlier this month, United States Citizenship and Immigration Service (“USCIS”) issued a news release touting its accomplishments for FY 2019, which ended on September 30, 2019 (a belated Happy FY 2020 to all!). According to the agency, “FY 2019 has been a historic year for USCIS and we have achieved many of President Trump’s goals to make our immigration system work better for America.” Here, we’ll take a look at some of USCIS’s “accomplishments” and explore what that means for asylum seekers.

First, I can’t help but note the hostility towards Congress and towards asylum seekers expressed in the news release and by Acting USCIS Director Ken Cuccinelli. Here are a couple quotes—

In the face of congressional inaction, we’ve taken significant steps to mitigate the loopholes in our asylum system, combat fraudulent claims and strengthen the protections we have in place to preserve humanitarian assistance for those truly in need of it.

Absent congressional action to provide targeted fixes to our immigration system, USCIS rushed personnel and resources to our southern border and implemented a number of significant policy changes and reforms designed to help reduce the loopholes in our nation’s asylum system that allowed for crisis levels of abuse and exploitation.

USCIS is correct that Congress has failed to pass comprehensive (or partial) immigration reform, which has been sorely needed for years. However, to blame only Congress, without considering the erratic leadership (or lack thereof) from the Executive Branch looks like a case of the pot calling the kettle black. Also, USCIS again points to “loopholes” and “crisis levels of abuse and exploitation” without specifying what that means. Clearly, the Acting Director wants to deter asylum seekers from coming here, but that is a separate question from whether asylum seekers themselves are exploiting loopholes or abusing the system. 

In anticipation of more e-filing, USCIS has added extra hard drives to its computer.

USCIS points to two major policy reforms for FY 2019. The first is the Migrant Protection Protocols (“MPP”), which were designed to stop asylum seekers from “attempting to game the immigration system.” Again, evidence that anyone is “gaming the system” is lacking. “Under MPP, aliens attempting to enter the U.S. from Mexico without proper documentation may be returned to Mexico to wait outside of the U.S. during their immigration proceedings.” Sadly, the MPP has done real damage to our asylum system and to our nation’s moral standing. The program has forced thousands of people to wait in tents in Mexico, where they are subject to violence and extortion at the hands of cartels, which have a powerful presence near the border. Also under the MPP, asylum seekers are routinely and blatantly denied due process of law.

The other major policy reform is the Third Country Transit Asylum Rule, which is designed to–

enhance the integrity of the asylum process by placing further restrictions or limitations on eligibility for aliens who seek asylum in the United States. Specifically, with limited exceptions, the rule bars aliens, who entered along the southern border, from receiving asylum in the U.S. if they did not apply for asylum in at least one other country they transited through. This rule aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.

Like the MPP, this rule degrades (and arguably violates) our asylum system by forcing asylum seekers who arrive at the Southern border to file for asylum in a country that they pass through on the way to the U.S. This might be fine if the countries in question were safe and had operating asylum systems of their own, but for the most part, they aren’t and they don’t. What I find most offensive about this pronouncement, though, is the last part–the claim that the policy “aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.” It does no such thing. Instead, the rule arbitrary seeks to block all asylum seekers by forcing them to seek protection in third countries. There is no effort to distinguish legitimate asylum seekers from those who are somehow not legitimate (whatever that means). Why USCIS can’t simply say this, and be honest about their goal of making asylum more difficult for everyone, I do not know.

The news release also gives us some statistics. “In FY 2019, the Asylum Division received more than 105,000 credible fear cases – over 5,000 more than in FY 2018 and a new record high.” A credible fear interview or CFI is an initial evaluation of asylum eligibility. People who arrive at a border or an airport and request asylum receive a CFI. If they “pass,” they are referred to an Immigration Judge for a full asylum hearing. If they “fail,” they are removed from the U.S. The fact that USCIS performed a record number of CFIs signals that the government’s deterrent efforts are not working. If people were being deterred from coming to the U.S. for asylum, we should see lower numbers of CFIs.

Another statistic relates to hiring– 

In FY 2019, USCIS executed an ambitious plan to hire 500 staff for the Asylum Division by the end of December 2019 to reach authorized staffing levels. New strategies are in development to more specifically target individuals with relevant experience and skill sets, including those with prior military and law enforcement expertise.

The Asylum Division has been “staffing up” for probably half a dozen years, and whether they expect to actually achieve their goal this time, they do not say. If so, this could help reduce the asylum backlog, which would be good news. On the other hand, the idea that they are recruiting people with “law enforcement expertise” rather than human rights experience, points to the type of candidate they may be seeking.

Also in FY 2019, the “Asylum Division trained and deployed U.S. Border Patrol agents and USCIS officers from outside the Asylum Division to supplement staffing on the southern border and assist with the Asylum Division’s workload.” Whether Border Patrol agents and USCIS officers have the training necessary to properly do Asylum Division work is an open question, and is an issue of concern for advocates. I personally have my doubts. But on the positive side, I suppose it will free up “real” Asylum Officers to do more affirmative cases.

Finally, the news release discusses some plans for FY 2020. One point of interest for asylum seekers is that USCIS plans to continue the transition to on-line filing, and will make it possible to e-file the I-589 asylum form. If done properly, this would be a great benefit to asylum seekers, since it would make filing easier and more reliable, and would hopefully avoid the problem of USCIS losing documents, which has been a big issue in the past. Given all the bad news from USCIS, let’s end here, with happy thoughts of e-filing in FY 2020. 

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On the Morality of Lying to Win Asylum

by Jason Dzubow

We are living in a time of big lies. President Trump is notorious for his mendacity, and many members of his Administration are no better. These lies come in different shapes and sizes, and relate to topics as diverse as climate change, election meddling, hurricane forecasts, international trade, and Joe Biden. But the biggest and most oft-repeated lies seem to involve immigrants: Asylum seekers are criminals, separating children from parents at the border was Obama’s fault, the asylum system is a scam, non-citizens are voting in our elections, illegal immigrants get free healthcare and welfare benefits, Democrats support open borders, the Diversity Visa Lottery lets foreign governments choose who gets a green card, Muslim refugees were admitted into the U.S. while Christian refugees were refused, immigrants can sponsor all sorts of distant relatives through “chain migration,” Central American countries are safe, etc., etc.

The question I want to ask today is this: If the government itself is lying about asylum seekers, why shouldn’t asylum seekers lie if it helps them win their cases?

The Asyl-Immanuel Kant approve a case where the applicant has Ben Constant-ly lying.

My interest here is not in practicality–it is clearly a bad idea to lie because you might get caught. Our government has a lot of information about asylum seekers and can use that information to test credibility. Asylum Officers, USCIS Officers, DHS attorneys, and Immigration Judges are good at examining witnesses and ferreting out falsehoods. Even if you get away with lying on an asylum application, the lie could come back to haunt you in the future (when you apply for residency or citizenship, or if you want to sponsor a family member). So there are good, practical reasons to tell the truth: You could lose your case, you could be blocked from any immigration benefits for life, you could end up in jail. And if you do get away with it, you can never really rest easy, and for as long as you are here, you will have to live with the possibility that your lie might be exposed and you could lose the life you’ve built in the United States. So in practice, lying is a bad idea. Here, though, I am interested in the morality of lying; not the practicality. Is it morally wrong to lie if that lie helps you to remain in the United States?

At one time, it would have been easy to answer that question in the affirmative. While President Obama’s policies were not always friendly to immigrants–he was called the “Deporter in Chief” by some immigration advocates–his Administration never engaged in the type of systematic dishonesty that we see from President Trump and his team. Despite all the problems during President Obama’s term (and there were many problems), at least it felt as though asylum applicants could generally have their cases adjudicated in an environment that was free from overt political interference. Given that people could get a fair shake, the moral justification for lying was a more difficult case to make.

In those distant days of the Obama Presidency, it was common to hear asylum seekers express great faith in our system of justice. That was one reason they came here in the first place. Their faith in our system made them more likely to tell the truth. Ironically, the constant barrage of lies from President Trump and his Administration is eroding faith in our system, which creates an increased incentive for individuals to falsify their own asylum stories. When the asylum system is discredited and illegitimate, the moral case for telling the truth is weakened.

Of course this outlook assumes a sort-of quid pro quo: If you (Trump) lie about me (asylum seeker), I can lie to you. This is an ends-justify-the-means approach that has never appealed to my sense of justice, and I am frankly uncomfortable with lying from a moral perspective simply because I believe lying is wrong–regardless of the end goal. But this is a type of morality that is easily deconstructed under various modern theories of legal justice. For example, when my law partner asks me, as he often does, “Do these pants make me look fat?” I always say no, even though those pants do make him look fat. I am lying for the sake of maintaining harmony in the office. Ends justifying means. So perhaps I should be less skittish about the moral implications of lying in other realms.

Indeed, support for the morality of lying for the “greater good” can be found in an old philosophical conundrum, presented by Benjamin Constant to Immanuel Kant in 1797. Kant basically believed that lying was always wrong, and so Constant challenged him with a scenario where a murderer is searching for his victim. The murderer arrives at the house of the victim’s friend and asks the friend where the victim is hiding. Does the friend have a duty to speak truthfully to the murderer? Constant argues that he does not–

The concept of duty is inseparable from the concept of right. A duty is that on the part of one being which corresponds to the rights of another. Where there are no rights, there are no duties. To tell the truth is therefore a duty, but only to one who has a right to the truth. But no one has a right to a truth that will harm others.

And so where the government is deliberately harming asylum seekers by lying about them in order to send them away, how can we say that asylum seekers have a duty to tell the truth to that same government?

For me, this is a difficult and uncomfortable question. But despite it all–the unfair laws (which long pre-date this Administration), the torrent of false claims about asylum seekers, the assault on due process–I still think lying is morally wrong in an asylum case. Here’s why: First, for me, the idea of asylum is somehow sacred. Our country is offering protection to strangers who need our help. We ask for nothing in return. In this respect, and despite a realpolitik element, asylum represents our highest ideals. And these are not just American ideals. The idea of welcoming the stranger is mentioned again and again in the Bible. Because I view asylum this way, the idea of lying to win one’s case feels like the violation of a sacred trust or covenant, and I see that as morally wrong.

Also, lying to win asylum further erodes the system and makes it harder for other asylum seekers to receive the protection they need. It is bad enough that the Trump Administration is systematically trying to dismantle our asylum system. When asylum seekers lie, they unwittingly aid in this effort and amplify it, and I believe that this is morally wrong.

Finally, I do not believe that two wrongs make a right. Just because the Administration is debasing itself by lying to harm asylum seekers, I do not think asylum seekers should do the same. I do not think it is moral to lower one’s own standards simply because another person is acting immorally, or even when we are operating in a system that is moving towards moral bankruptcy.

Having said all this, I recognize that I am far less affected by “the system” than the people seeking asylum. I have less to gain and less to lose. Each of us–asylum applicants, attorneys, decision-makers–has to make our own decision based on our own moral imperatives and our own needs. The President and his Administration have made their choice. They are lying to further their agenda. My hope is that asylum seekers and the asylum system can survive their lies while keeping our own morality intact.

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What Happens at an Asylum Hearing in Immigration Court?

by Jason Dzubow

There are now more than 1,000,000 people with cases pending before our nation’s Immigration Courts. The culmination of this process is the Individual Hearing, where the Immigration Judge (“IJ”) usually decides whether the applicant gets asylum, some other relief, or is ordered deported from our country. For asylum seekers, the Individual Hearing can be stressful and frightening. Here, we will discuss what to expect at that hearing. In prior posts, I discussed the Master Calendar Hearing, and how to prepare for the Individual Hearing.

Before we get to the substance of what happens at the Individual Hearing, I should mention that there are detained and non-detained hearings. A detained hearing is similar to a non-detained hearing in terms of the order of events, but sometimes the IJ and the alien are in different locations, and so cases are done by video (non-detained cases can also be done by video, but this is less common). These video hearings are more difficult to litigate, in terms of looking at documents, hearing each other talk, reading non-verbal cues, empathizing with the applicant, etc. Detained hearings are more difficult to prepare for, as it is difficult to gather evidence and get ready for your case when you are in jail.

Also, of course, different IJs have different styles (in Immigration Court, IJs decide the case – there are no juries). Some IJs ask a lot of questions; others ask no questions. Some are professional and respectful; others, not so much. It is helpful to know something about your IJ before the court hearing, so you can have an idea about what to expect. Statistics about asylum grant rates for many IJs can be found at TRAC Immigration.

Also, if the Judge makes a joke, don’t forget to laugh. Even if you have no idea what the heck he is talking about.

Finally, as I discussed previously, many cases are won or lost before the trial even begins, and so how well the case is prepared will likely affect how the Individual Hearing proceeds.

As for the Individual Hearing itself, it begins when the IJ arrives in court. Everyone stands up for the Judge. Once everyone sits, the hearing usually begins with a conversation between the IJ and the lawyers (assuming the alien has a lawyer). During this discussion, the parties may try to narrow the issues that need to be discussed. Perhaps there are some areas of agreement, and it is helpful to know this in advance. Also, in some cases, the IJ will not need to hear testimony about the entire case – maybe the alien will only need to testify about part of her story.

At the beginning of the hearing, the IJ will ask what “relief” you are seeking. This can be asylum, Withholding of Removal, relief under the Torture Convention, Cancellation of Removal, Adjustment of Status, Voluntary Departure, and/or something else. The IJ will also mark the evidence and hear any objections. So if you submitted evidence, and the DHS attorney objects to that evidence, the Judge must decide whether or not to admit that evidence into the record, and how much “weight” to give to that piece of evidence (some evidence is considered more reliable than other evidence and hence receives more “weight” in terms of how much it influences the IJ’s decision). At this time, the IJ will also ask whether there are any changes to the form I-589. You can update your form and make any corrections. Once the form is updated, the IJ will have you sign the form under penalty of perjury. You will also be “sworn in” under the penalty of perjury. This is basically a promise to tell the truth, and if it is found that you are not telling the truth, there are potential immigration and criminal consequences. If there is an interpreter in your case, the interpreter will also be sworn in.

If you have brought any witnesses to court, they will typically be asked to wait outside, so they cannot hear your testimony. That way, their testimony can be compared to your testimony. If there are inconsistencies between your witness and you, it could cause the IJ to think you are not telling the truth. For this reason, it is important that the witnesses are prepared in advance, and that you and your witnesses are on the same page. Keep in mind that different people may have different memories of the same event, and even if they are both telling the truth, there is still a risk that the two accounts will not be consistent. For this reason, it is important to go over each person’s testimony prior to the court hearing.

Normally, the “respondent” (the alien who is the subject of the court proceeding) testifies first. This usually begins with your attorney asking questions (assuming again that you have an attorney). This is called the “direct examination,” and usually involves you telling your whole story. Once the testimony is done, the DHS attorney asks questions. This is called “cross examination.” During cross exam, the DHS attorney will often try to test your credibility. There are different ways to do this: Asking about prior inconsistencies in other applications (including any visa applications), at the Asylum Office, or during the credible fear interview; asking about testimony that seems implausible or inconsistent with country conditions; asking about documents or evidence that seems fraudulent. Hopefully, as you prepare your case, you will think about some possible avenues for cross examination and how you might respond. Afterwards, your attorney has an opportunity to ask some additional questions, based on what happened during cross examination. This is called “re-direct.” The IJ can interject with questions at any time.

During your testimony (and for your witnesses’ testimony), remember that if you do not understand a question, ask for clarification. Do not answer a question that you do not understand. If you do not know the answer to a question, or you do not remember the answer, just say that you don’t know or you don’t remember; don’t guess. If you need a moment to collect your thoughts, ask for that. If you need a break, ask for that too. If you have an interpreter and there is a problem with the interpretation, don’t be afraid to raise that issue as well (especially if you do not have a lawyer or your lawyer does not understand the language). Also, on cross exam, the DHS attorney often asks yes-or-no questions, and will sometimes insist on a yes-or-no answer (sometimes, the IJ will do this as well). If you cannot answer the question using a yes or no, try to explain that. If you feel that you have no choice but to answer yes or no, you should at least alert the IJ that you have more to say. On re-direct, you will have an opportunity to elaborate on your answer. Remember to always be polite and don’t lose your cool.

After your testimony is finished, it will be your witnesses’ turn. Sometimes, the IJ will accept a “proffer” of a witness’s testimony (assuming both your lawyer and DHS agree). This means that the IJ will accept the testimony as recounted in the witness’s letter (witnesses generally submit a statement in advance of trial), and that the witness will not actually need to testify. A proffer can be beneficial to your case (since it eliminates the possibility of inconsistent testimony), but it can also be a disadvantage (since the IJ will not hear the witness’s testimony, which would presumably support your asylum claim).

After all the testimony is done, most–but not all–IJs allow the lawyers to make closing arguments. This is an opportunity for the lawyers to explain why they think you should win (or, for the DHS lawyer, lose) your case. Some IJs prefer to have a discussion at the end of testimony, to see whether there is agreement about resolution of the case.

Finally, the IJ will either make an oral decision, reserve decision for later, or inform the parties about the next step (in some cases, the IJ needs more information from the parties before she can make a decision). In the majority of of cases, the IJ issues an oral decision that same day.

If you do not like the IJ’s decision, you can “reserve” appeal. If the DHS attorney does not like the IJ’s decision, DHS can reserve appeal. If you (or DHS) reserve appeal, you have 30 days to file the appeal using form EOIR-26. The IJ should give you the deadline for the appeal. If you or DHS appeal, the appeal will be resolved by the Board of Immigration Appeals. But that is a story for another day.

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Asylum Ban 2.0 Won’t Work – Here’s Why

by Jason Dzubow

In a recent decision, the Supreme Court has allowed a new asylum regulation to go into effect, at least until questions about the legality of that regulation work their way through the court system. Until now, the rule had been on hold, thanks to an interim decision by a lower federal court. The regulation–colloquially known as Asylum Ban 2.0–bars certain people from asylum, depending on when and where they entered the United States. Whether the regulation will ultimately be upheld by the courts is not yet known, but obviously, the Supreme Court’s decision does not bode well. 

Here, we’ll take a look at the effect of the new rule on asylum applicants and on “the system.” 

First, let’s talk about who is blocked by the regulation. The rule applies only to people who arrive at “the southern land border” of the United States. So if you arrive in the U.S. at an airport or seaport, or if you arrive by boat or drop in by parachute at a place other than the southern land border, the rule does not apply to you. Even if you arrived at the southern land border, the regulation does not apply to you if you got here prior to July 16, 2019. Those who arrive at the U.S.-Mexico border on or after July 16, 2019 are affected.

There are many ways to avoid the southern land border.

If you are affected by the regulation, you are barred from asylum unless (1) you demonstrate that you applied for protection from persecution or torture in at least one country outside your country of citizenship, nationality, or last lawful habitual residence through which you transited en route to the United States, and that you received a final judgment denying your application for protection in such country; or (2) you demonstrate that you satisfy the definition of “victim of a severe form of trafficking in persons” provided in 8 C.F.R. § 214.11.

So the first exception requires the alien to seek protection in a third country en route to the U.S. It’s worth noting that if you are seeking asylum from Mexico, the rule does not apply to you, since you have not passed through a third country. If you are from some other country, the only way to arrive at the southern land border is to pass through Mexico. Some people pass through dozens of countries to reach the U.S.-Mexico border; other people pass through only one country (Mexico). The regulation requires that you seek asylum in one of those countries; the regulation does not require you to seek asylum in more than one country.

In the preamble to the regulation, our government justifies its new policy by claiming that Mexico’s asylum system is a “robust protection regime.” This seems doubtful. Most reports indicate that the Mexican asylum system is overburdened and flawed. Moreover, the situation in Mexico is unsafe for many people trying to reach the U.S. Most other countries that asylum seekers might pass through are no better. And so the idea of barring asylum seekers simply because they did not seek asylum in a country that was unsafe for them and/or that does not have a functioning asylum system seems unfair (especially for those who did not know about the rule, which is effectively retroactive) and cruel. 

What then do you do if the new rule applies to you? For people who are not yet here, my guess is that some of them will start seeking asylum in third countries and being denied. It seems to me that the rule will create a cottage industry where any Mexican or Central American official with a “no” stamp can issue a denial, and then the asylum applicant can use that denial to support a claim for asylum in the U.S. For people who arrive after July 16, 2019 and who have not tried to obtain asylum in a third country, there are still two main options–Withholding of Removal (“WOR”) and relief under the UN Convention Against Torture (“CAT”). Both forms of relief are potentially available to people who fear persecution in their home countries, though they are both inferior in terms of benefits when compared to asylum. Also, the evidentiary burden for WOR and CAT is higher than the burden to obtain asylum. Nevertheless, WOR and CAT are forms of protection that remain available to asylum seekers, even those who are blocked by the new regulation.

The second exception to Asylum Ban 2.0 applies to victims of human trafficking. The regulation defines trafficking victim as follows–

Severe form of trafficking in persons means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act is under the age of 18 years; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery

This is pretty broad and pretty vague. People who have been subject to sexual abuse or forced labor might meet this exception. Also, unlike the first requirement about seeking asylum in a third country, the regulation does not require that the trafficking took place “en route to the United States.” Potentially then, if you were ever a victim of human trafficking, you might qualify for this exception to the asylum ban.

Asylum Ban 2.0 will undoubtedly make it more difficult for certain people to obtain protection in the United States. That is the whole point. But I have my doubts about whether the new rule will accomplish what the Trump Administration hopes to accomplish, which is to deter people from coming here to seek asylum. The new regulation does not block people from WOR or CAT, and so when they arrive at the border and ask for protection, they will still be accorded a credible or reasonable fear interview (which is an initial evaluation of eligibility for asylum, WOR, and CAT). While it may now be more difficult to “pass” such an interview, the difference in the burden of proof between asylum and the burden for WOR or CAT is fuzzy, and it seems to me that aliens who would have passed for purposes of asylum may very well also pass for purposes of WOR and CAT. Thus, asylum seekers will still be entering the system, and so the deterrent effect of the new rule will probably be less than what the Administration wants. Further, I just don’t believe that people will be deterred from coming here by the Administration raising the bar a few notches. Look what is happening in the Mediterranean: Every year, thousands of migrants are killed trying to get to Europe, yet still they come. If people are not deterred by the real possibility of dying, it seems doubtful that they will be deterred by a higher legal hurdle.

In the end, I doubt that this new regulation will do much to alleviate the problem at the border or the backlogs in the Asylum and Immigration Court systems. However, it will hurt asylum seekers–by making it more difficult for them to get the protection they need and by encouraging those who arrive at the border to circumvent legal points of entry. The new regulation will also further erode morale among Asylum Officers and Immigration Judges, who simply want to follow the law. And finally, the new rule further degrades our country’s role as a beacon of hope and freedom for persecuted people throughout the world.

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Want to Lose Your Asylum Hearing in Immigration Court? Then Don’t Prepare in Advance

by Jason Dzubow

The key to winning an asylum case in Immigration Court is preparation. I’d venture that the majority of asylum cases are won or lost before the applicant arrives in court for the final hearing. If the case and the applicant are well prepared, the chances for success are greatly improved. If the case and the applicant are not well prepared, the likelihood of winning is much reduced. So how do you prepare for an asylum hearing in Immigration Court?

First, you have to determine whether you are eligible for any relief. If you fear return to your country on account of your race, religion, nationality, political opinion or particular social group, you may be eligible for asylum or Withholding of Removal. If you fear torture, you could be eligible for relief under the United Nations Convention Against Torture. Besides these types of humanitarian protection, there are a number of other applications that might help you avoid deportation: Cancellation of Removal, adjustment of status based on a family relationship or a job, a T or U visa for certain victims of crimes, the semi-mythical S visa for certain cooperating witnesses, the Special Immigrant Juvenile visa, to name the most common. How do you know what relief you might be eligible for? Your best bet is to talk to a lawyer, but you can also do your own research.

Pear

Assuming you qualify for relief, you normally have to inform the Immigration Judge and submit all necessary forms at the Master Calendar Hearing (“MCH”). In many cases, if you do not submit all applications for relief in advance of the Individual Hearing, you forfeit those opportunities for relief. Be aware that some applications for relief require a fee (asylum does not require a fee), and so make sure to pay the fee well in advance of the Individual Hearing.

As the Individual Hearing approaches, you need to file all the necessary documents with the Immigration Court. This includes all evidence, a witness list, and a legal brief. The documents must be filed on time. The default rule (from the Immigration Court Practice Manual) is that evidence should be filed at least 15 days prior to the Individual Hearing, but some Judges have their own rules and require documents earlier than that (the Judge should inform you about this at the MCH). One copy of the evidence goes to the Court and one copy goes to the local Office of the Principal Legal Advisor (the prosecutor).

The evidence normally consists of the I-589 asylum form (and/or forms for any other applications for relief), an affidavit, and supporting documents. Any documents not in English must be properly translated. You can read more about what evidence is helpful here.

Courts also require a witness list, which is a list of people who will come to Court to provide testimony in your case. Anyone who plans to appear as a witness must provide a letter indicating what they know about your situation. There are benefits and risks to any witness, and you need to think carefully about whether a particular witness will be helpful for your case (and of course, if you have a lawyer, the lawyer should explore this with you). All witnesses need to be prepared for their testimony, just as the applicant herself needs to be prepared (see below).

Also, for most cases, it is a good idea to submit a brief detailing the legal theory of the case. This is especially important where the case involves a particular social group or PSG (the BIA requires applicants to specifically articulate any PSG). Even in cases where PSG is not an issue, it is important to explain the legal posture of the case and any issues that may be relevant (one year filing bar, nexus, persecutor bar, firm resettlement, criminal issues, etc.).

In addition, if your case was referred to Court by the Asylum Office, you should think about why. Are there inconsistencies or errors that need to be addressed? Maybe this requires a new affidavit or additional evidence. Did you fail to show that you suffered past persecution or that you have a well-founded fear of future persecution? Maybe you need more evidence or a stronger legal argument. While the Immigration Judge reviews the case de novo (meaning, the IJ makes her own decision), remember that the Asylum Officer’s notes can be admitted to impeach your credibility. As you prepare for Court, you should think about what was said and submitted at the Asylum Interview, and determine whether that requires any additional evidence or testimony.

Pre-Pear

Before the Individual Hearing, make sure you and any of your dependents have completed their biometrics (fingerprints) appointment. If your case has been referred from the Asylum Office, this will already have been done (assuming you showed up for your biometrics appointment prior to your asylum interview). If not, you can request a biometrics appointment. This is important, and if you forget to do it (which is easy), it could result in the case being delayed or denied.

As the Court date approaches, it is important to practice for the hearing. How do you want to present your case? What questions might be asked of you? What are the weak points in the case and how will you discuss those? It is very important to think about these issues in advance. Judges and Trial Attorneys are good at finding the weaknesses in a case and asking about them, and failure to prepare ahead of time may result in the case being denied. In our office, we do two practice sessions with the client – the first about a week before the trial and the second a day or two before (this practice session is an much for the attorney’s benefit as the client’s).

Finally, prior to the hearing, it is a good idea to talk to the DHS Attorney (normally, your lawyer does this). It is not always easy to reach these attorneys, and they often do not return calls. However, at the beginning of the hearing, it is common for the Judge to ask whether the parties have talked, and so it is helpful to at least have tried to communicate with the government lawyer. Assuming you can talk to the lawyer in advance, you can potentially narrow the issues and have a better sense of what to expect at the hearing.

So that’s about it for preparation. In a future post, I will discuss what happens at the Individual Hearing.

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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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Acting USCIS Director to Asylum Seekers: You Can Live Safely in Your Own Country

by Jason Dzubow

Acting USCIS Director Ken Cuccinelli is encouraging Asylum Officers to deny asylum applications and credible fear interviews by any means necessary. He is particularly concerned about our Southern border, where “an unprecedented number of aliens [are] overwhelming our asylum system.” According to Mr. Cuccinelli, many of these aliens are “ineligible for asylum and are attempting to enter and remain in the country in violation of our laws.” His latest strategy for rejecting asylum applicants involves a regulatory bar to asylum called “internal relocation.”

Under existing rules, where an applicant fears harm from non-state actors, Asylum Officers and Immigration Judges should determine whether the applicant can live safely anywhere in the home country–in other words, whether the applicant can internally relocate. If the applicant can live safely within her home country, she is probably ineligible for asylum. The burden of proof in “internal relocation” cases varies, depending on whether the government is the persecutor, and whether the applicant has suffered past persecution: According to the regulations—

In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or is government-sponsored.

In cases in which the persecutor is a government or is government-sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.

Ken Cuccinelli: “Erupting volcanoes contain areas that are generally very safe. Look, here’s one!”

This means that where the government is not the persecutor, and the applicant has not suffered past persecution, the applicant must demonstrate that there is no place in his country where he can live safely. How do you show this? First, according to the Board of Immigration Appeals, internal relocation must be “reasonable under all the circumstances.” According to the relevant regulations, “adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” An example from my practice would be a single woman from Afghanistan who fears persecution from the Taliban because of her political activities. Given the restrictive culture in Afghanistan and the generally high level of violence throughout the country, especially against women, it would not be reasonable to expect her to pick up and move to a new city.

Where the persecutor is the government, or where the applicant has demonstrated past persecution, the applicant enjoys a presumption that internal relocation is impossible. Under these circumstances, the U.S. government has the burden to show by a preponderance of the evidence that safe internal relocation is possible. An example of government persecution and internal relocation might be an Evangelical Christian from Eritrea. The government there persecutes people from “banned” religions, including Evangelicals. Since the Eritrean government controls the entire country, internal relocation is not possible. The situation might be different in a country where the government does not control all its territory. For example, an applicant who fears persecution from the Iraqi government might be questioned about whether she could “internally relocate” to Kurdistan, since that area has some autonomy from the central government of Iraq. In this example, there are restrictions on a non-Kurd’s ability to live in the Kurdish region, and so I doubt that the U.S. government could demonstrate that internal relocation is possible, but they might make that argument.

A more unclear situation exists where the asylum applicant suffered past persecution from a non-state actor. Here, there exists a presumption that internal relocation is not possible. However, given the Acting USCIS Director’s admonition, I imagine that Asylum Officers will be encouraged to look more closely at whether such applicants can live safely within their countries.

If you are concerned about internal relocation, what can you do? Whether the burden is on you or on the government, it is a good idea to submit evidence that internal relocation is impossible. This is relatively easy where the government is the persecutor and controls the entirety of the nation’s territory. In other cases, where the persecutor is a non-state actor, things become more complicated.

The “internal relocation” analysis is really a two-step process: First, is it possible to relocate within the country and avoid persecution? And second, is internal relocation reasonable under all the circumstances? Based on this framework, the first thing to do is to submit evidence that the persecutor can reach you anywhere in the country. Typically, that would be country reports or news articles showing that, for example, gang members or terrorists are ubiquitous throughout the country. The State Department puts out a crime and safety report, which is often helpful, especially given that the Trump Administration has white-washed country conditions in many of its human rights reports. Other helpful sources include UNHCR RefWorld, Human Rights Watch, and Amnesty International, to name a few. Of course, if you tried to relocate and the persecutor found you, that would also be important evidence.

If there are places inside your country where the persecutor cannot reach you, you can still avoid an asylum denial by showing that internal relocation is not reasonable. Such a determination is very country specific, but perhaps there is generalized violence that makes it unsafe to relocate, or maybe there are no jobs, or maybe there are cultural issues (like the single woman in Afghanistan). Some countries have laws that prevent people from relocating internally (like the rules in Kurdistan or the propiska in Russia). In other cases, a person’s age or health might make relocation impossible. Whatever the reason, try to obtain evidence in support of your claim.

All this brings us back to Mr. Cuccinelli’s latest pronouncement and his effort to block asylum seekers. He states that asylum would not be necessary for many individuals coming here “if they sought refuge within their home country, particularly given the fact that there are areas that are generally very safe within each of the countries that currently make up the bulk of our credible fear cases.” There is no factual basis for this claim, and in fact, it flies in the face of available country-condition evidence. It is also an insult to the intelligence and independence of the Asylum Officers tasked with implementing our nation’s asylum laws.

In this light, Mr. Cuccinelli’s closing words sound ominous: “The Asylum Division work is very important, and your dedication to the mission has not gone unnoticed.” Is this simply a tepid expression of Mr. Cuccinelli’s appreciation for the Asylum Officers working under him? Or–coming from one who seems determined to undercut the mission of the Asylum Division–is it a warning to those who have the temerity to do their jobs according to the law? At one time, I would have considered this a ridiculous question. These days, I am not so sure.

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Asylum and the New Rule on Expedited Removal

by Jason Dzubow

The Trump Administration has implemented a new rule to reduce due process protections and make it easier to deport certain aliens who are in the United States unlawfully. Given its questionable legality, clumsy roll-out, and lack of notice, we can expect the new rule–which expands the use of “expedited removal”–to be challenged in court, and so whether it will remain in effect and how it will ultimately be implemented, we do not yet know.

While I don’t share the apocalyptic view of some of my colleagues, I do think there is a real danger that the rule gives too much authority to under-trained immigration agents, and that it will result in some non-citizens (and potentially some citizens) being improperly detained and deported in violation of the law. I also think it will further exacerbate the Asylum Office backlog. Worst of all, I expect the new rule will disproportionately impact and terrorize minority communities.

On the bright side, non-citizens will get some exercise carting around their papers.

Here, we will take a look at the new rule and what it might mean for asylum seekers and others. But first, we have to talk about “expedited removal.” The American Immigration Council describes expedited removal as follows–

Created in 1996, expedited removal is a process by which low-level immigration officers can quickly deport certain non-citizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.

Basically, a non-citizen who recently entered the U.S. either without inspection or through fraud, and who is encountered near the border, had less due process protections than someone who has been here for a longer time, who entered lawfully or who is in the interior of the country. People subject to expedited removal do not get to see an Immigration Judge–they are detained and deported quickly (though there are exceptions, discussed below). The new rule expands the use of expedited removal geographically and temporally–

As of July 23, 2019, expedited removal may be applied to individuals who are undocumented, or who have committed fraud or misrepresentation, and who are encountered within the entire United States and who have not been physically present in the United States for two years prior to apprehension

What does this mean in practical terms? If you entered the U.S. lawfully with a visa, and did not commit fraud, expedited removal does not apply to you. Even if you entered unlawfully or without inspection, expedited removal does not apply to you if you have been in the United States for more than two years. These criteria beg the obvious question: How does an immigration agent know whether you entered fraudulently or whether you have been here for less than two years? As I read the rule, it seems that the burden of proof is on the alien. So if you entered legally, keep a copy of your passport, visa, and I-94 with you. If you entered unlawfully more than two years ago, carry evidence showing your length of residency–tax and employment documents, school records, lease agreement, bills, etc. This type of evidence will not protect you from being detained if you are out of status, but it should at least allow you an opportunity to present your case to an Immigration Judge, rather than facing summary removal (for information about what to do if you encounter an ICE agent, click here).

Let’s say you are subject to expedited removal and ICE stops you. Then what? If you have a fear of returning to your country, you can express that fear to the immigration agents and you should be afforded a credible fear interview (“CFI”). The CFI is an initial evaluation of eligibility for asylum; it is conducted by an Asylum Officer. If you “pass” the CFI, your case will be referred to Immigration Court where you can present your full asylum case to a Judge. If you “fail” the CFI, you can request an Immigration Judge to review that decision and potentially reverse the negative determination by the Asylum Officer (unfortunately, the likelihood of success for such cases varies significantly depending on the particular Court that hears your case).

If everything were to work according to the law, the new rule should not be too bad: People with a fear of return can still seek asylum and those here unlawfully would be quickly removed (such people generally do not have any defense to being deported). The problem–which is completely predictable since we have seen it before–is that things often do not work according to the law. ICE agents frequently lie to prevent non-citizens from exercising their legal rights. They also make mistakes, which result in people being denied their rights. Further, ICE often engages in racial profiling, and so we know which communities will bear the brunt of the new rule.

In addition, there is the problem of politicization of our nation’s immigration enforcement. Every time the President puts out a tough tweet about “illegals,” ICE has to scramble to make it come true (or not). The result, of course, is distress and terror in immigrant communities. The new rule seems tailor-made to increase such fears.

Finally, with this new rule, there is the problem of execution. I’ve described the Trump Administration’s approach to immigration as malevolence tempered by incompetence, and this new rule is no different. According to the Migration Policy Institute, there are nearly 300,000 immigrants in the United States who could be subject to expedited removal. When ICE starts detaining these people, we can expect many to ask for a CFI (which is usually their only option). Since CFIs are conducted by Asylum Officers, the new rule will shift resources away from “regular” affirmative asylum cases and will likely exacerbate the backlog (ironically, the whole point of the LIFO system was to deter frivolous cases by making the process faster–the new rule will have the exact opposite effect). Further, people whose CFIs are denied can ask an Immigration Judge to review that decision, thus taking additional resources from the Courts and causing more “aimless docket reshuffling.”

The new expedited removal rule seems to me predicated on two myths: First, that there is a pressing danger from non-citizens living in our country. Empirical data does not support this conclusion; rather, it is based on racist and xenophobic stereotypes perpetrated by the current Administration. Second is the myth that our country would be safer if we traded some of our liberty for more security. And make no mistake, when under-trained immigration officials are given near carte blanche to investigate anyone deemed “foreign,” we are–all of us–giving up some of our liberty. As my favorite Founding Father, Ben Franklin, once wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” The new rule reduces our liberty, does nothing to enhance our safety, and sows more fear among our immigrant neighbors. It is another sad step towards the degradation of our great country.

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