From an Asylum Attorney to the Green Party’s Jill Stein: Hillary Clinton Is Not the Same as Donald Trump

by Jason Dzubow

Dr. Jill Stein is the Green Party’s presumptive nominee for President of the United States. In a recent appearance on Democracy Now!, she argued that there was little difference between Hillary Clinton and Donald Trump:

Trump says very scary things—deporting immigrants, massive militarism and, you know, ignoring the climate. Well, Hillary, unfortunately, has a track record for doing all of those things. Hillary has supported the deportations of immigrants, opposed the refugees—women and children coming from Honduras, whose refugee crisis she was very much responsible for by giving a thumbs-up to this corporate coup in Honduras that has created the violence from which those refugees are fleeing. She basically said, “No, bar the gates, send them back.” You know, so we see these draconian things that Donald Trump is talking about, we actually see Hillary Clinton doing.

CtuthuluDr. Stein says that, people are “very quick to tell you about the terrible things that the Republicans did, but they’re very quick to forget the equally terrible things that have happened under a Democratic White House…. It’s time to forget the lesser evil, stand up and fight for the greater good.”

I am a member of the Green Party. I am also an attorney who represents immigrants and asylum seekers. My clients have fled persecution in the Middle East, Africa, and the Americas. They are not people who have the luxury of idealism. They are people whose loved-ones have been killed by war and terrorism. Many of my clients have been attacked or threatened with death. Their first priority is to keep their families and themselves alive. By leaving everything behind–family members, friends, homes, careers–in order to find safety in America, they have already chosen the lesser evil that Dr. Stein speaks about.

We are now almost at the start (!) of the general election season. Are the two major candidates for President really the same, as Dr. Stein argues? My clients don’t think so. They are genuinely afraid of Donald Trump and of what he represents. When Mr. Trump threatens to ban Muslims from the United States, or when he refers to Mexicans (and Americans of Mexican decent) in a racist manner, my clients wonder whether there is a future for them in this country.

One of my clients is a women’s rights activist from Afghanistan. Will she be able to reunite with her young children, or will they be prevented from coming to the U.S. because of their religion? Other clients are a Syrian couple, both doctors, whose first child died in the war. Will they be able to keep their second child safely in the United States, or will they be forced to leave? What about my Iraqi client who was kidnapped and tortured by terrorists? Or my Pakistani-journalist client whose step-father was murdered in retaliation for the family’s democratic political views? And what about my Honduran client who was shot in the head by members of MS-13 because he refused to join their gang? If Mr. Trump had his way, I imagine all these people—and many more—would be blocked from seeking refuge in our country.

Contrast this with Hillary Clinton. Dr. Stein points out that Ms. Clinton supported a coup in Honduras that supposedly helped create the current refugee flow from that country, and that Ms. Clinton favors detention of asylum seekers, including families with children, who arrive at our Southern border. Based on the evidence I have seen, Dr. Stein’s claim about the coup is dubious: Violence was rising in Honduras before the coup, and it continued to rise after the coup. It is very difficult to pin the current waive of migration to the coup (or to credit Ms. Clinton with causing it). As for the detention of families at the border, I have yet to see a solution to this problem that is practically and politically viable. Should we simply throw open our border to all comers? My sense is that the large majority of Americans would oppose such a move. I personally think we should be using more alternatives to detention, but this is a policy tweak; not a complete solution. A leader’s first priority must be to protect our country. How that can be achieved without control of our border, I do not know. In sum, the “lesser evils” discussed by Dr. Stein are difficult policy choices, and reasonable people can differ on the solutions.

More important than her previous policy positions are the positions Ms. Clinton would likely take if elected President. The Democratic Party has moved to the left, and whatever policies Ms. Clinton advances will be determined largely by where the party stands politically. On immigration, it is in a different universe from the Republican Party and from Mr. Trump, whose hardline stance on immigrants is well known. For Dr. Stein to argue that the two candidates’ positions on immigration are similar is like saying that black is the same as white (ok, maybe it’s more like saying that dark gray is the same as light gray, but you get the idea).

I have been a member of the Green Party for over 15 years. I support many of it’s policies. But I have found it very difficult to support the top-down strategy that seems to have characterized the party since at least 2000, when Ralph Nader siphoned off votes from Al Gore. I have always felt that the Green Party should focus on state and local races. A “revolution” (whatever that means) will not come from the top down–it will come from the bottom up. So while I believe the Green Party should run a national campaign in order to raise awareness on various issues, I also believe it should ultimately endorse the Presidential candidate that represents the “lesser evil.” In the current election, that candidate is Hillary Clinton. There are major differences between her and Donald Trump, and those differences may determine whether people like my clients live or die. I hope Dr. Stein will keep such people in mind as we move through this election campaign.

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The Asylum Office Scheduling Bulletin, Explained (Sort of)

by Jason Dzubow

The purpose of the Asylum Office Scheduling Bulletin (“AOSB”) is to give asylum applicants “an estimate for when they might expect their interview to be scheduled.” At best, though, it’s a very rough estimate. The problem is that the AOSB tells only part of the story, and not even the most important part. Let me explain.

For two bits, Madame Blavatsky can predict when your interview will be. And I'll bet she's more accurate than the AOSB.
For two bits, Madame Blavatsky can predict when your interview will be. And I’ll bet she’s more accurate than the AOSB.

First, what is the AOSB? It is a chart that lists the eight main Asylum Offices. For each office, we can see the filing date of the cases that that office was interviewing in March 2016 (the most recent month listed on the chart). We can also see the two previous months (January and February 2016), which gives some idea about how quickly (or not) the office is moving through its case load.

So, for example, if you look at the Arlington, Virginia Asylum Office, you will see that as of March 2016, it is interviewing people who filed their cases in October 2013. In January and February 2016, Arlington was interviewing people who filed their cases in September 2013. The Chicago office has made the most progress during this period, advancing from May to August 2013. San Francisco is also making steady progress, moving from January to March 2014. Other offices–Houston, Los Angeles, Miami–have moved not at all. But again, this is only part of the story.

One thing the numbers do not tell you is that many of the cases filed prior to December 26, 2014 have already been interviewed. Extrapolating from our own case load, for example, I estimate that in my local Asylum Office (Arlington), approximately 60% of cases filed between October 2013 (the date listed on the AOSB) and December 2014 have already been interviewed. That’s because there was a policy change on December 26, 2014 affecting how the Asylum Offices handle their cases.

What happened is this: In the Good Old Days (and the dates for “the Good Old Days” differ depending on your Asylum Office), asylum cases were filed and interviewed relatively quickly. At my local office, most interviews took place two or three months after filing. Then, starting in 2012 or 2013, and continuing until today, the number of people arriving at our Southern border increased significantly. These migrants are mostly young people from El Salvador, Honduras, and Guatemala. They are fleeing violence and poverty. Some are attempting to reunite with family members already in the United States.

At the border, the migrants ask for asylum. They are generally detained and subject to a credible fear interview (“CFI”). A CFI is an initial evaluation of eligibility for asylum. It is easier to “pass” a CFI than to win asylum, and a large majority of applicants pass the interview. They are then permitted to present their asylum cases to an Immigration Judge or an Asylum Officer. Applicants who do not pass the CFI are deported.

This mass migration (often called “the surge”) affects the affirmative asylum process in a few ways. First, CFIs are conducted by Asylum Officers. These are the same officers who conduct asylum interviews at the various Asylum Offices. If the officers are spending time on CFIs, they obviously are not spending time interviewing applicants at the Asylum Offices. And since most of the people arriving at the Southern border are detained, which costs the U.S. government money, CFIs get priority over the Asylum Officers’ other work. Another way the surge has affected asylum seekers is that the Asylum Offices are prioritizing unaccompanied minors over other applicants. A large percentage of “surge” asylum applicants are minors, and thus their interviews receive priority over “regular” asylum seekers.

When DHS diverted resources away from the Asylum Offices, affirmative cases started piling up. This began in our local office in 2013. About 60% of the case we filed during this period were interviewed in the normal time frame; the other 40% disappeared. The disappeared cases came to be known as “the backlog.”

Once it became apparent that the backlog was not going away, the Asylum Division changed its policy. Starting on December 26, 2014, cases would be interviewed on a first-in/first-out basis. This meant that the Asylum Offices started interviewing the cases in the order received, starting with the cases that had disappeared into the backlog. The AOSB was first published in about July 2015, and since then, there has not been a whole lot of progress. In Arlington, for example, since July 2015, the Asylum Office has only advanced from August to October 2013. Los Angeles is worse. Back in July 2015, they were interviewing cases filed in August 2011. Today, they are still interviewing cases filed in August 2011. Ugh.

The U.S. government has been trying to improve the situation. The Asylum Division has hired more staff, including officers devoted exclusively to CFIs. We now have a system–limited to be sure–to process refugees in-country in Central America and bring them to the U.S. More controversially, we seem to have convinced Mexico to crack down on migrants passing through its territory, and we have prioritized the deportation of “surge” applicants, sometimes at the expense of our international obligations and due process of law. But if the AOSB provides any indication, these efforts have done little to reduce the backlog.

The most important factor impacting movement at the Asylum Offices still appears to be the number of people arriving at the Southern border. As long as these numbers remain high, I am not optimistic that the Asylum Offices will make much progress on the backlog. And the prospects for improvement in the near-term do not look good: Preliminary reports from the border indicate that we can expect more asylum seekers than ever, as migrants seek to enter the U.S. before our increasingly-hostile political climate makes conditions for asylum seekers at the border even more dire.

All these factors, and more (like, how cases and CFIs are distributed between Asylum Offices, how many Asylum Officers are detailed overseas to process refugees, etc.), contribute to movement on the AOSB. Because there are so many unpredictable factors at play, I don’t see how the AOSB can claim any accuracy as a long-term predictor of when an individual asylum interview will be held. To me, it’s kind of like looking at the weather report a month before your vacation. It doesn’t tell you much, but since it’s all you’ve got, you pay attention anyway.

In the end, there is some value to the AOSB: Once you see that your asylum filing date is coming up, you know to prepare for your interview. Also, for applicants, I suppose it is helpful to know that they are not alone in Backlogistan. But as far as predicting interview dates, the AOSB is a mirage in the desert–it may encourage you to keep walking, but it tells you nothing about when you might get your next drink of water.

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The Art of “No”

by Jason Dzubow

In the field of immigration law, if you’re a reasonably-priced attorney in private practice, or if you work for a non-profit, you probably do a volume business. You have to, to make a living. And if you hope to get your work done, maintain a social/family life, stay healthy, and keep your sanity, there is one word that you need to keep handy at all times. As you might have surmised from the title of this piece, that word is “No”.

If only saying "no" to clients was as easy as just saying no to drugs
If only saying “no” to clients was as easy as just saying no to drugs

“Can I ask one quick question about my brother-in-law’s visa?”

– No.

“My friend’s lawyer said I can expedite my case if you just call the Asylum Office and ask them. Can you call them today?”

– No.

“I don’t have an appointment, but I stopped by to talk to you about my case. It will only take a few minutes. Can I see you?”

– No.

“You already completed and filed my asylum application, but I’ve decided I want to leave the country and withdraw my case. Can I have a refund?”

– No.

As the asylum backlog has turned into an unpleasant version of the Never Ending Story (without a cute little boy named Bastian to save us), client demands have proliferated. This is not the clients’ fault. It makes sense that they should turn to their attorneys with all their immigration questions (and their family member’s immigration questions) (and their friends’ immigration questions). While it’s certainly understandable, it puts the attorney in a difficult position.

In the good ol’ days, before the backlog, most asylum cases lasted less than six month. Even the slow cases were usually resolved in a year or so. But now, it takes years just to get an interview; never mind the delays post-interview. This means that the number of “active” asylum cases has increased. In my office, for example, I always had one large filing cabinet, where I kept my cases. Now I have three, and I might need to get a fourth soon (if you have one to sell, let me know). I’ve gone from maybe 60 or 70 active asylum cases to over 300.

With more numerous and longer-lasting cases, we lawyers have to spend much more time responding to our clients’ queries. Most of my clients are not particularly high-maintenance people, but even if they call once a month, and it takes me five minutes per call, that’s 1,500 minutes–or 25 hours–per month. That’s time I can’t spend working on other client matters, meeting deadlines or taking my traditional three-martini lunch. Indeed, if I was less protective of my time, I could spend all day addressing client questions, and no work would ever get done.

One way to turn these long-term cases in the lawyer’s favor is to bill the client for the lawyer’s time. That way, every five minute call translates into income. Many attorneys do that, but I suspect few lawyers specializing in asylum bill their clients this way, and it’s not how I do things. I hate keeping track of such little periods of time, and I hate nickel-and-diming the clients. They don’t much like it either.

The alternatives are not much better. Either the lawyer can say “no” to his clients, or he can go crazy trying to answer all their questions.

In my practice, I try to at least say “no” gracefully:

“Can I ask one quick question about my brother-in-law’s visa?”

– I’m sorry, I can’t answer questions that are not related to my clients’ cases. If he wants to come in for a consultation, he is welcome.

“My friend’s lawyer said I can expedite my case if you just call the Asylum Office and ask them. Can you call them today?”

– Actually, it does not work that way. I can email you a document explaining the expedite process.

“I don’t have an appointment, but I stopped by to talk to you about my case. It will only take a few minutes. Can I see you?”

– Sorry, I have a deadline and I cannot meet right now. If you talk to my assistant, she can schedule an appointment for you.

“You already completed and filed my asylum application, but I’ve decided I want to leave the country and withdraw my case. Can I have a refund?”

– Hell no! Get outta here before I call ICE and have you deported!

OK, that last one is not exactly how I would respond (and the subject of refunds is probably worth its own blog post one of these days), but you get the idea. You can say “no” and be protective of your time, at least to a large extent, while still helping your clients (though maybe on your time; not theirs).

And obviously there are real emergencies when the client does need advice immediately, but I find that these situations are rare. Indeed, many client “emergencies” are not urgent at all–the client just wants to know the answer to a run-of-the-mill question, and she wants to know it now. I usually ask the client to email me the basic details of the emergency, so I can decide for myself how urgently I am needed.

As with so many things in legal practice–and in life–the key here is balance. We need to be responsive to our clients, but we also need to protect our own time, so we can get our work done. Learning to say “no” is not always easy, and for me at least, it does not come naturally. But saying “no” in a respectful way is an essential skill for all immigration lawyers.

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Trump Campaign’s Law Firm Represents Muslims, Mexicans, Criminal Aliens

by Jason Dzubow

Donald Trump–who famously declared his intention to ban Muslims from coming to the United States, and who called Mexican migrants “rapists“– is represented in his presidential campaign by a law firm whose pro bono clients include Muslims and Mexicans, as well as many other immigrants and asylum seekers.

Don McGahn: Working hard to ensure that the asylum seekers represented by his law firm colleagues will face discrimination and deportation.
Don McGahn: Working hard to ensure that the asylum seekers represented by his law firm colleagues will face discrimination and deportation.

To be sure, all 2,400+ attorneys at Jones Day do not support Mr. Trump, and many have been quite vocal (at least anonymously) about their opposition to the candidate and their firm’s representation of him. It also seems that the lead attorney for the Trump campaign, Donald “Don” McGahn II, has been under some pressure to separate himself from the firm. However, at least for now, Jones Day seems to be all in for the Republican nominee.

Given it’s support for the candidate, perhaps it’s a bit ironic that Jones Day has spent considerable money and pro bono time representing the very people that Mr. Trump seeks to ban from our country. Indeed, Jones Day has been recognized for its service by a number of leading immigrant-advocacy groups, including Human Rights First, the National Immigrant Justice Center, Tahirih Justice Center, the Lawyers’ Committee for Civil Rights Asylum Project, Immigration Equality, and the Capital Area Immigrants’ Rights Coalition. These organizations represent immigrants and asylum seekers throughout the country. Many of their clients are detained in ICE custody. Some are criminals. Others are (gasp!) Muslim. The work of these organizations has helped save thousands of lives, and the support of firms like Jones Day is integral to their efforts.

And it’s not just organizational support. Aside from fundraising, a perusal of the firm’s recent pro bono successes reveals that Jones Day attorneys have directly represented Muslim, Mexican, and Central American asylum seekers, among many others. The firm has also represented criminal aliens in their quest to remain in the United States.

For example, in March 2016, three attorneys from the Jones Day Chicago office won a victory in the Ninth Circuit for a Salvadoran man convicted of perjury. As a result of this success, the man has an opportunity to present his case for relief to the Immigration Judge, and he now has a chance to stay in the United States with his wife and son. The firm also successfully represented a gay man from Jamaica who received relief under the Torture Convention (most likely, he was ineligible for asylum due to a criminal conviction), an Afghan man convicted of assault against a police officer, and a Mexican citizen who was charged with procuring his admission to the U.S. by fraud.

In addition to its criminal-immigration work, the firm has obtained asylum for a Muslim refugee from Somalia, a Muslim refugee from Iraq, and many other clients from majority-Muslim countries, including a woman from Mali, a family from Kyrgyzstan, a man from Turkey, a family from Iran,  a woman and her son from Iraq, and a man from Yemen (the firm’s website does not specify whether these clients are Muslim, but it seems likely that many are).

In fact, the firm has an entire webpage devoted to its pro bono asylum and immigration activities. Jones Day is rightly proud of this work–the firm has assisted scores of asylum seekers and immigrants. It has won many cases and has represented aliens in precedent-setting litigation before the federal appellate courts and the U.S. Supreme Court. The firm is also rightly proud of its support for various non-profits, which help thousands of foreign nationals and their families. But how do these effort squares with the firm’s representation of Mr. Trump, whose central message is anti-Muslim and anti-immigrant?

It seems pretty clear that there is no ethical conflict in terms of the Rules of Professional Responsibility that lawyers must follow, and I have no doubt that the firm can competently represent both Mr. Trump and its pro bono clients. However, it does seem to me that representing the Republican nominee creates a real moral conflict for Jones Day.

From my observation, big-firm attorney who represent asylum seekers and immigrants pour their hearts and soles into the cases. They often become friendly with their clients and they are heavily invested in the case outcomes. How would it feel to devote yourself to such a case, only to have your firm’s most high-profile client denigrate your efforts?

I am not a Jones Day attorney. I am not even a big-firm attorney. Never have been; probably never will be. But it seems to me that the character of a firm is important. That character is defined by the work the firm does–the paid work, and perhaps even more so, the pro bono work, which represents the firm’s core values. Mr. Trump’s campaign is diametrically opposed to the values that underpin much of Jones Day’s pro bono work, and I do not see how these two paths can be morally reconciled. I also do not see how the firm can maintain its integrity by helping needy immigrants at the same time it is working to elect a president who is a bigot and a xenophobe.

Abraham Lincoln once observed that a house divided against itself cannot stand. I wonder: Can a law firm?

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The Philosophy Behind the Asylum Affidavit

by Jason Dzubow

If you ask three lawyers how to write an asylum affidavit, you’re likely to get three (or more) opinions.

An applicant’s affidavit is the heart of her asylum case. It explains who she is, what happened to her, and why she needs protection. It’s also an opportunity to address weak points in the case and to mitigate inconsistencies that may have come up in prior encounters with U.S. government officials.

The debate about whether bigger is better goes all the way back to Affidavit and Goliath.
The debate about whether bigger is better goes all the way back to Affidavit and Goliath.

Given how important it is, it’s not surprising that different lawyers have different ideas about how to write a good affidavit. Some lawyers write long, very detailed affidavits. Others write short, perfunctory affidavits or do not write affidavits at all. Most of us–including me–fall somewhere in the middle.

There’s probably no “right” answer here, but for me, at least, the arguments for a detailed–but not too detailed–affidavit are the most convincing.

One problem with providing a lot of detail in an affidavit is that it creates more opportunities for inconsistencies: If there are more facts in the affidavit, the applicant has more to remember. For example, if the written statement indicates that the applicant ate peppered tuna with Nicoise salad before he was arrested, he better say that he ate peppered tuna with Nicoise salad when he testifies. Otherwise, the adjudicator might take the inconsistency as a lie, which could cause the applicant to lose his case.

Taken to an extreme, the concern about consistency between the written and oral testimony might suggest that the best approach is a less-detailed affidavit, or even that no affidavit is needed at all. From the attorney’s point of view, this would be nice, since the affidavit represents a large portion of the work we do. And it’s always convenient when the best interest of the client (avoiding inconsistencies) and the best interest of the lawyer (laziness) are aligned.

However, I think there is a major risk involved with using a minimal (or non-existent) affidavit. First, under the REAL ID Act, an applicant is required to submit evidence when it is available. Typically, this consists of letters attesting to the persecution or other aspects of the case, medical reports, police records, and country condition information. Many of these documents will include dates (for example, a letter might indicate that the applicant was arrested on May 15, 2010) or other details. It is important that the applicant herself is aware of all these dates and details, and that her testimony is consist with them. Writing an affidavit, and having the applicant read it, is one way to help ensure consistency between the applicant’s testimony and her supporting evidence.

Also, the affidavit is useful for ensuring consistency between all the different pieces of evidence. Instead of comparing each letter to every other letter, you need only compare each letter to the affidavit. As long as every document is consistent with the affidavit, every document should be consistent with every other document. And if everything is consistent, it bolsters the applicant’s credibility.

I suppose you could write out the affidavit to help the applicant with his story and to help ensure consistency, but then not give the affidavit to the Asylum Officer or Immigration Judge. In this way, you would gain the benefits of having an affidavit while avoiding the risk of inconsistencies created by submitting the affidavit. But I’m not a fan of this approach, as I think the affidavit benefits the decision-maker in several ways. For one thing, it gives the decision-maker a detailed understanding of the case, which, if presented correctly, should go a long way towards producing a successful outcome.

Second, it allows the applicant to point out and mitigate weak points in his case. Most Asylum Officers and Immigration Judges are pretty smart, and they’re experienced enough to hone in on problems in a case. If the problems can be overcome and explained in the affidavit, it will help satisfy the decision-maker before she even meets the applicant. This will allow the decision-maker to focus on the portions of the case that you want to emphasize.

In addition, in court, an applicant’s oral testimony is often incomplete. Court testimony is commonly truncated to save time (especially where the Immigration Judge and DHS attorney are already familiar with the story from the affidavit and thus do not need to hear the applicant repeat his entire tale). Should the application for asylum be denied, the affidavit is useful on appeal, and many lawyers–including yours truly–have used affidavit testimony to help win an appeal with the Board of Immigration Appeals or the federal circuit court.

So for all these reasons, I think a comprehensive affidavit is beneficial to the case. But of course, it is possible to include too much detail, which can trip up an applicant. The trick is to find the balance between providing the necessary information to convince the decision-maker and to humanize the client, but not so much information that the client can’t keep track of it all and the legally-relevant facts become obscured by irrelevant detail. Enough, but not too much. It’s an art, not a science, and with experience, each lawyer develops a style that works for his clients and hopefully helps achieve the clients’ goals.

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Must Asylum Lawyers Advise Our Clients to Enter the US “Illegally” Through Mexico?

by Jason Dzubow

Delays in the U.S. affirmative asylum system have just about reached a breaking point. In our office, the longest-waiting applicant recently passed the three-year anniversary of his asylum interview, with no decision in sight. And of course, it’s not just post-interview delays (usually due to security background checks) that are the problem. Anyone interested in asylum knows about the long wait times–anywhere from two to five years–before an applicant even receives her interview.

"At least we're all together."
“At least we’re all together.”

Perhaps these wait times are tolerable for a single person or a family that is together here in the U.S. After all, such applicants (eventually) receive a work permit, which allows them to work, attend school, obtain a driver’s license, and live a relatively normal life (though it is a life overshadowed by the uncertainty and stress of not knowing whether they can remain here).

But what about an asylum seeker who is here, but separated from his spouse and children? Can a person wait for three, four, five years or more to reunite with family members? Will a young child even know her parent, if the only contact she’s had with the parent over the last several years has been via Skype? And won’t such long delays make the process of integration that much more difficult for family members who are “following to join” the principal asylum applicant?

For all these reasons, I believe USCIS should be prioritizing cases of applicants who are separated from their families. Unfortunately, USCIS does prioritize such cases.

There is a possible alternative to waiting for years separated from family: Arrive at a port of entry without a visa and ask for asylum. There are different ways to arrange such an arrival. It can be done legally or illegally. It can be very dangerous or relatively safe. My question here is, what obligation do attorneys have to advise our clients about the different options?

First, though, I want to briefly discuss the various options, starting from the worst and working up to the best (or, more accurately, the least bad).

The most illegal, and most dangerous way to come to the U.S. is by hiring a smuggler and paying him to bring you to the United States. There are all sorts of smugglers, and all sorts of smuggling routes. Some routes are relatively direct; others are circuitous. People die along these smuggling routes. Many others are robbed or raped. The majority seem to get detained in various countries for various periods of time. Some get stranded for months or years. And some are lucky and arrive with few difficulties. The cost of such trips varies widely. I have heard about people paying anywhere from $10,000 to $80,000; South Asian and Chinese migrants tend to pay more than Africans. This route almost always brings the alien to the Southern border, where she can try to enter the U.S. illegally (this has become increasingly difficult and dangerous) or where she can present herself to a U.S. Customs Officer and ask for asylum (this seems to be the more popular path these days).

Another illegal way to come here is to travel by air using a fake visa and/or passport, or the passport and visa of another person. Such documents can be difficult and expensive to obtain for an individual. For a family, the cost and trouble of getting fake documents is probably much greater. Once the alien arrives at the airport, he can present the documents and try to enter the U.S. or he can ask the Customs Officer for asylum.

A final option is to travel legally to Mexico, travel legally to the U.S. border, and inform the Customs Officer that you wish to apply for asylum.

In each case, assuming that she does not manage to pass inspection and enter the United States, the asylum seeker will be detained–maybe for a few hours and maybe for many months. Many asylum seekers who make it that far are ultimately denied asylum and deported (and some remain detained during the entire Immigration Court process).

Given all these risks, it’s clear that the best alternative is to come to the United States with a visa and then seek asylum after you enter the country. The problem, of course, is that it is very difficult to obtain a U.S. visa, especially for nationals of countries that tend to send asylum seekers to the United States, and especially especially for such nationals who want to come here with their spouse and children.

As lawyers, though, we have an ethical obligation to inform our clients of the options and to let them make their own decision. So when a father comes to my office and I explain the delays in the asylum system, and I tell him that he probably won’t see his children again for two, three or more years, and then he asks whether there is any way to bring his children here sooner, what am I to say? I suppose I can tell him about the process to expedite cases, but that process barely works and, at best, it is very unpredictable. I can also advise him to try to get visas for his family members, but we both know that this probably won’t work (and it’s also ethically questionable, since I would be advising the family members to come here on a non-immigrant visa when I know they plan to remain here permanently). But what about the “Mexico option”? Do I have an obligation to suggest that his family members apply for Mexican visas, which may be easier to get than U.S. visas, and then come to the Southern border for asylum?

The more I have considered this path, the more I think I am obligated to tell my clients about it. For one thing, it is entirely legal (yes, the title of this article says that it is “illegal,” but let’s call that a literary flourish to make the subject of the article more clear). If they arrive legally in Mexico, they can travel to the U.S. border and–even though they do not have permission to enter the United States–they can request asylum at the border. Despite misperceptions to the contrary, requesting asylum at border is legal. See INA § 208(a)(1).

Under U.S. law, the “circumvention of orderly refugee procedures” generally does not block a person from obtaining asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). In other words, if a person does not wait for resettlement as a refugee, but instead travels to the U.S. to seek protection, he is not blocked from receiving asylum. Indeed, in my office, we have represented many people who arrived without a visa at the Southern border, and none of them was denied asylum due to the “illegal” entry.

So if a client is here in the U.S., stuck in asylum purgatory, and asks what she can do to bring her spouse and children to the U.S., I suppose I must mention the “Mexico option.” I can’t say I would recommend this option—the spouse and children will likely end up detained—but I do not think this is a decision for me to make. Maybe they are better off in detention, with a chance of release to join their asylum-seeker family member, than in the home country indefinitely separated from that family member and possibly in danger themselves.

As a lawyer, I have an ethical obligation to inform my clients about all the lawful options available to them—even the options I personally do not prefer. The path through Mexico may be an option for some, and asylum seekers have a right to know about it, so that they can make the best decisions for their families.

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Asylum in Canada Is Not for Everyone (Sorry Aboot That)

by Jason Dzubow

This piece is by our intrepid associate, Ruth Dickey, who is well-known for her love of Canada.

Given the current mess that is the U.S. asylum system, it’s not surprising that many asylum seekers who first land in the United States have been heading North to make their claims in Canada. Perhaps they are lured there by faster asylum processing times and a more generous attitude towards refugees. While it may sound idyllic to roll out of your igloo in the morning, pick up your Tim Horton’s coffee, and commute to work on a polar bear, obtaining asylum in Canada after you’ve been in the United States may not be so easy.

Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.
Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.

The main problem in Canada for asylum seekers who have passed through the United States is something called the Canada-U.S. Safe Third Country Agreement (“STCA”). This treaty requires applicants to make their asylum claims in the first safe country they enter. Thus, if you first enter the United States, you have to make your asylum claim here. If you first enter Canada, you have to make your claim in that country.

The STCA has four exceptions: (1) The applicant has family members with lawful status in Canada; (2) The applicant is a minor travelling without a parent; (3) The applicant has a document that allows him to enter Canada; and (4) The applicant faces the death penalty. More details about these exceptions can be found here.

The most common exception is probably the family member exception; it may also be the exception that creates the most confusion, so let’s take a closer look. Under the STCA, the term “family member” is broadly defined, to include:

  • spouse
  • legal guardian
  • child
  • father and/or mother
  • sister and/or brother
  • grandfather and/or grandmother
  • grandchild
  • uncle and/or aunt
  • nephew and/or niece
  • common-law partner
  • same-sex spouse

You can see that Canada allows people to meet the family-based exception with a wide range of relatives. Cousins are not on the list, but virtually all other categories of relatives are.

In our office, we currently represent several people who left the U.S. to seek asylum in Canada, only to be turned back at the border. One client hired us in 2014, after he attempted to enter Canada from the U.S. He had qualifying Canadian relatives who were naturalized citizens of Canada. However, he had no documentation to prove the relationships, and so Canadian border officials rejected his request for entry and quickly returned him to the United States.

Unlike many people who filed for asylum in 2014, our client was lucky enough to get a prompt interview. However, like many applicants, his decision was delayed. Only recently—a year and a half after his first interview—he was called for a second asylum interview where he was questioned about his trip to Canada. Unfortunately, a well-meaning, but not-so-well-informed relative in Canada tried to help our client while he was in Canadian custody, and made some contradictory statements to Canadian officials. The Asylum Officer had the records from Canada, and asked our client about the relative’s statements. Our client explained the situation as well as he could, and we are still waiting for a final decision.

There are some lessons to be drawn from this client’s ordeal. First, going from the U.S. to Canada can do more harm than good. Even if you don’t have some well-intentioned relative meddling in your case, it takes time for the Asylum Office to get Canadian immigration records and review them. That means more delay (on top of already long delays), and no one wants that. Also, if you already tried to seek asylum in Canada and were rejected, tell your lawyer and try to remember any communication that you or your relatives had with the Canadian authorities—the Asylum Officer will likely have access to your records, so plan accordingly.

Another lesson is that, if you are seeking a family exception–through your uncle, for example–you should bring civil records (and translations) demonstrating that you and your uncle are related. Our client’s experience shows that Canadian border officials will not necessarily wait around for you to collect these documents once you reach Canada. You need to have the documents with you before your trip.

Finally, if you do plan to seek asylum in Canada, and you are in the U.S., you would be wise to consult with a Canadian immigration lawyer before traveling. Maybe you qualify for an exception to the STCA and maybe you don’t. A Canadian lawyer familiar with that country’s immigration laws should be able to advise you before you take on the risk and expense of going to Canada for asylum.

There are certain advantages to asylum in Canada, and some people who pass through the U.S. are eligible to seek refuge in that country. But unless you plan ahead for your trip, you may end up back in the United States and worse off than when you started.

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Did Immigration Advocates Help Create Donald Trump?

by Jason Dzubow

As Donald Trump marches (goose steps?) toward the Republican nomination, there’s been much hand wringing about the reasons for his rise. But if you listen to his supporters, there are a few themes that stand out.

Mr. Trump's real estate empire and his political campaign were both built using immigrants.
Mr. Trump’s real estate empire and his political campaign were both built using immigrants.

One big issue is immigration. Last June, Mr. Trump called Mexican immigrants “rapists” and he has advocated banning all Muslims from entering the United States. Indeed, for a time, the only issue on the Trump campaign website was immigration (or maybe more accurately, anti-immigration).

There are many explanations for why Mr. Trump’s xenophobia has resonated with his supporters: Fear of terrorists and criminals, economic and cultural concerns, racism and white supremacism. In a way, these are not new. For most of our country’s history, U.S. immigration policies have reflected such sentiments, and at various times, all sorts of people have been blocked from entering the United States.

Here, however, I am interested in a different question: Whether the work of immigration advocates to help asylum seekers has contributed to the climate that produced Donald Trump.

Now wait just one gosh-darned second here, you say. Isn’t this like blaming Jews for the Holocaust or blaming African Americans for the KKK? I think there’s a difference. Allow me to explain–

Over the last 20 or so years, we’ve seen a marked expansion in the types of people who qualify for asylum. Some of this was Congressionally sanctioned–protecting victims of forced abortion, for example–but mostly, it was the result of creative lawyers pushing the boundaries of the law to protect their clients. Litigation has resulted in protection for victims of female genital mutilation, domestic violence, and forced marriage. To a more limited extent, victims of criminal gangs can also qualify for protection (sometimes), and many talented attorneys are working hard to improve asylum-case outcomes for such people, whose lives often are at risk.

Until about 2012 or 2013, the effort to broaden the categories of protection was somewhat theoretical. More people were eligible, but the number of asylum seekers actually applying remained relatively stable. But then things changed.

Between 2009 and 2012, increasing numbers of people–mostly Central American–began arriving at the Southern border to seek asylum (in FY 2009, there were about 5,500 such asylum seekers; in FY 2012, there were over 13,600). Since 2013, the numbers have skyrocketed. The most recent data shows that well over 6,000 people per month are requesting asylum at the border.

Most of the Central American applicants don’t easily fit within the traditional protected categories of asylum. They are fleeing criminal gangs and domestic violence, but given the expanded range of people who can qualify for protection, they now have a realistic possibility of receiving asylum.

As the number of migrants from Central America was on the upswing, activists for the DREAM Act began seeking asylum in order to highlight their own plight (the DREAM Act, which has been stalled in Congress, would grant residency to certain undocumented immigrants who were brought here as children and who have lived their lives in the United States, but who currently have no lawful immigration status). The DREAM activists received a lot of attention in the media, and they demonstrated in a public way that asylum seekers could arrive at the Southern border, request protection, and be paroled into the country to pursue their cases.

It seems likely that these two events–changes in the law wrought by litigation and wide-spread publicity about asylum seekers gaining entry into the U.S. at the border–helped lead to the current spike in migration. This is not to say that people coming here for asylum are not also fleeing severe violence in their home countries–they are: Honduras, El Salvador, and Guatemala are three of the most dangerous places on Earth. But when you look at data about violent crime in those countries, there is little evidence correlating increased violence with increased migration. In other words, these countries had previously been very violent; something else seems to have spurred the current wave of migration. Quite possibly, that “something else” includes an improved legal climate and publicity about asylum.

Added to all this is the Obama Administration’s decision to allow an additional 10,000 Syrian refugees to resettle in the U.S. at a time when fear of terrorism seems to be at an all-time high. This decision was not made in consultation with Congress; the President has the power to make such a decision and he did. A slew of Republicans weighed in against the move.

We now return to Donald Trump.

The idea that “liberal elites” are making decisions to encourage more immigration, and that ordinary Americans (i.e., Trump supporters) have no say in these decisions, fits neatly into Mr. Trump’s narrative. This world view is not unrelated to reality. Indeed, as we’ve seen, recent changes related to asylum and refugee policies likely have brought more immigrants to the United States, and these changes were not reached by consensus, or even by a democratic process. Rather, they were achieved through litigation and civil disobedience, or via executive action–all methods of choice for the “liberal elite.”

Should we–the liberal elite–have done things differently? I’m not sure, but I certainly won’t apologize for the work of advocates and activists to represent our clients and to expand the law. That is our job and our duty. The President’s decision to bring more Syrian refugees here was also the right choice, and–to me at least–represents a fairly tepid response to a massive crisis.

But obviously there is a problem. Many people feel left out of the decision-making process, and that is wrong. Immigration profoundly affects who we are as a country, and Americans–all Americans–have a right to participate in the policy debate on that topic. In taking action to protect our clients and save lives, we “elites” have, to a certain extent, trampled over the democratic process.

Perhaps this is all dust in the wind: People who support xenophobes like Mr. Trump aren’t likely to have their minds changed by refugee sob stories or even by evidence that immigration actually helps the country. The sad state of our national discourse has prevented the type of rational policy debate that we need to move towards a broader consensus. Against mounting evidence, the optimist in me still believes that democracy works. I’d like to see a little more of it in our national conversation about immigration.

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How Much Should I Pay for an Asylum Lawyer?

by Jason Dzubow

Among lawyers, there’s a certain skittishness when it comes to discussing fees. Speaking for myself, I don’t much care for the money-side of the business. We’re not trained to deal with client payments in law school, and the guidance we receive afterwards—from the bar association, for example—is related more to complying with lawyer-trust-account rules than to determining how much to charge.

If the lawyer spends more time counting your money than working on your case, you probably paid too much.
If the lawyer spends more time counting your money than working on your case, you probably paid too much.

In the field of asylum law, attorney fees vary widely. Within my little community, for an affirmative asylum case, I’ve heard about lawyers charging anywhere from $900 to $10,000 (or more). For defensive asylum cases (in court), prices are usually higher. Sometimes these fees are flat fees, meaning you pay a set fee for the entire case. Other times, fees are hourly, meaning you pay for the lawyer’s time–the more time the lawyer spends on your case, the more you pay.

In my office, we charge a flat fee of $3,000 for most affirmative cases, which is fairly competitive with those few attorneys in Washington, DC whose main practice area is asylum. Our fee for defensive cases is usually $4,000 [update 01/10/18 – please note that these fees were from 2016 and no longer apply]. What’s ironic here is that lawyers who do not specialize in asylum—and who consequently have less experience in this area of practice—are actually able to charge more for each case (I remember telling one such lawyer about my fee and she burst out laughing; I took that as a sign that I should raise my rates – maybe one day). In our firm, the bread-and-butter cases are asylum, and so we need to do a lot of such cases. Thus, we have to keep the prices down. If our main practice area was business immigration, for example, we could charge more for each asylum case, since we would not need to do a large number of such cases to make a living.

So how do you know what is a fair fee for an asylum case? And what exactly do you get in exchange for giving money to an attorney?

The first question is difficult to answer. Hiring an attorney is not like buying a new car. Whether you buy the car from one dealership or another, it’s the same car. With a lawyer, you are paying for his work. Some lawyers are brilliant, honest, and hard working; others are poorly trained, lazy, and dishonest. Paying more money for a lawyer does not mean that you are hiring a better advocate. In fact, I find that there is little relationship between the amount of the fee and the quality of the service. Indeed, lawyers who charge higher fees for asylum are sometimes more interested in earning money than in helping their clients.

I suppose the first thing you’d have to know in deciding whether an attorney’s fee is fair is the quality of the service she provides. There are certain things a good attorney should do. For example, a good attorney will listen to your story and try to evaluate the strengths and weakness of your case; she won’t sugarcoat the case in an effort to get your business. A good attorney will make sure you understand the asylum process, the problem of delay, and the possible results in your case. She should also explore any alternatives to asylum that might be available to you. A good attorney will help you put together your case, write your affidavit with you, and advise you about what supporting evidence you should obtain. This point is crucial: The affidavit (or declaration) is the heart of your case, and an asylum applicant may not know what information is legally relevant to include in that document. If the attorney does not spend significant time helping you prepare the affidavit, she is not doing her job. Without a properly prepared affidavit, the odds of success go way down.

Also, a good attorney should prepare you for your interview by discussing possible questions and answers, and by helping you think through answers to problematic portions of your story. A good attorney should be relatively easy to reach; if you call and leave a message, she should call you back (pet peeve alert: If you call and don’t leave a message–like some of my clients–the attorney likely will not call you back, as she won’t know that you’ve called her – so leave a message!). If your lawyer is not providing these services, she is not doing her job, and whether her price is a lot or a little, it is too high.

A final point, and this is key: A good attorney will never encourage you to lie or agree to represent you if you tell him that you want to lie to the U.S. government. Any attorney who does that is untrustworthy and dangerous. If they are willing to lie to the government, you can bet that they will lie to you.

If your attorney is providing all the essential services, if you feel comfortable with the attorney, and if you can afford the fee, whatever it is, you are probably getting a fair deal. Maybe that is a cop-out answer, but as I’ve said, it is quite difficult to place a monetary value on a lawyer’s services.

I truly believe that there is little relationship between price and quality among asylum lawyers. If you find an attorney that you like, but his price is too high, then look for another attorney who is more affordable. Good, reasonably-priced lawyers are out there. But remember too that these cases are a lot of work. Most asylum lawyers who are dedicated to the field don’t expect to get rich, but we do need to make a living. And you do need to pay a fair price for their work. Now, if you’ll excuse me, I’m off to earn the big money… or not.

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The Easiest Office to Win Asylum, and Why You Shouldn’t Apply There

by Jason Dzubow

If you want to maximize your chances for winning asylum, where is the best place in the U.S. to apply?

It’s unfortunate that we even need to ask this question. In a perfect world, the approval rates for each Asylum Office would be about the same. But in the real world, approval rates vary–by quite a lot, it turns out.

Lies, damned lies, and statistics: Which are these?
Lies, damned lies, and statistics: Which are these?

Our team of mathematicians here at the Asylumist have been working hard to analyze the most recent data from the Asylum Office, and we’ve summarized our findings in the attached chart. You can see that the approval rate for the San Francisco office (76.5%) is significantly higher than for the other Asylum Offices. The next best offices are Arlington (51.8%) and Los Angeles (50.7%), followed by Chicago (38.3%), Miami (37.7%), and Newark (35.8%). The worst offices are Houston (27.6%) and New York (22.6%).

First, a word about methodology: We used monthly statistical information from the Asylum Division Quarterly Stakeholder Meeting to calculate the percentages. USCIS posts this information four times per year, and you can see the latest posting here. We looked at the numbers from the most recently available six month period: April to September 2015. To determine the approval rate, we removed from the mix (technically, from the denominator) asylum denials based on no-shows–in other words, where the applicant herself never attended the interview.

Just for fun, we added another column listing the length of delay before the interview at each office (as of February 2016 – one day, I will do an article about why the posted wait times are not good predictors of how long a new asylum applicant will wait for an interview). You can see that the Asylum Offices with the lowest grant rates (New York and Houston) also currently have the shortest waits for an interview (20 months and 21 months respectively). Perhaps there is a connection between grant rates and waiting periods, but I doubt it–the office with the highest grant rate (San Francisco) has the third shortest waiting time (25 months).

Based on the above analysis, the savvy asylum seeker might conclude that the best way to maximize his chance for a grant is to live within the jurisdiction of the San Francisco Asylum Office, or as a second choice, the Arlington, Virginia or Los Angeles Asylum Offices (to see which Asylum Office has jurisdiction over your case, check the Asylum Office Locator). But I think such a conclusion assumes too much. I also think there are other factors worth considering besides grant rates and wait times. Let me explain.

First, it’s difficult to know what’s behind the above numbers and how applicable they are to an individual case. Who is seeking asylum at each office? From which countries and for what reasons? Are applicants more likely to be represented by a lawyer (which increases the likelihood of a grant) at certain offices? Some types of cases are more difficult to win than others, and this might be reflected in the statistics. For example, supposedly the Houston office has a higher percentage of applicants fleeing persecution from criminal gangs in Central America. In general, such cases are difficult to win since applicants don’t easily fit into a protected category under the asylum law. If we could eliminate Central American cases from the mix, perhaps the Houston office would have a higher grant rate. So does this mean that if you have a different type of asylum case (say, an Iraqi fleeing religious persecution), Houston might not be a bad place to apply? Maybe. At least it probably is not as bad as the overall approval rate suggests.

Second, while USCIS provides limited information about why cases are denied, they do give us some information–most importantly, they provide the number of cases denied due to missed filing deadlines (asylum applicants are required to submit their applications within one year of arrival in the U.S. or meet an exception to this rule; otherwise, the Asylum Office will automatically deny the case and refer it to an Immigration Judge). For some reason, the New York office has a high percentage of “Filing Deadline Referrals.” Roughly 35% of all referrals in NY are due to the filing deadline. In most other offices, less than 20% of cases are referred on this basis. If you remove such cases from the calculus, the overall grant rate in NY goes from 22% to over 30%. So does this mean that more people are filing late in New York, or does it mean that New York is less likely to find an exception to the one-year filing requirement? While I suspect it’s the latter, we really don’t know. But if you are filing your application in a timely manner, the New York office may not be as bad as the chart above indicates.

The bottom line is, we don’t know a whole lot about what’s behind the Asylum Division’s statistics, and without a better understanding of the situation, it is difficult to make predictions in an individual case.

There’s another unknown factor at play here as well: These cases are taking a long time, and given the relatively short tenure of each asylum officer (two or three years, I’ve heard), the approval rate at a given office may change by the time the interview date arrives. So a good office today may be less good tomorrow (or vice versa).

Finally–and for me, this is the best argument against forum shopping–given the years-long waiting period before the interview, asylum seekers have got to live their lives. I often advise new clients that they should live as though they are going to win their cases. Why? Because it’s impossible not to–how can you put your entire life on hold for two, three or more years while you wait for an asylum decision? In some things (reunification with family, certain job opportunities), you may have no choice, but to the extent possible, you need to live your life while you are waiting for a decision. This means you need to live where you have a job or go to school, or where you have the support of family members and friends. If you choose where to live based on the local Asylum Office approval rate, you may have a hard time surviving the wait.

On the other hand, if all else is equal (or maybe if you just have a hankerin’ for some Rice-A-Roni), San Francisco is probably not a bad place to apply.

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Anti-Immigration Group Spies on Asylum Division, Lies About It

by Jason Dzubow

Nayla Rush, a Senior Researcher at the anti-immigration Center for Immigration Studies, has apparently been spying on the USCIS Asylum Division – and lying about what she has overheard.

I couldn't find a photo of Nayla Rush infiltrating the asylum meeting, but I assume it would look something like this.
I couldn’t find a photo of Nayla Rush infiltrating the asylum meeting, but I assume it would look something like this.

First, a bit of background: As you may know, the Center for Immigration Studies or CIS (not to be confused with USCIS – the United States Citizenship and Immigration Services) is a group that wants to restrict immigration to the United States. Their writers are usually intellectually honest, though not always. I often disagree with their policy positions, and I have written about them a few times (here, here, and here). They also occasionally write about me.

Last week, I visited the CIS website and discovered Nayla Rush’s post about attending the USCIS Asylum Division Quarterly Stakeholder Meeting on December 11, 2015. The meeting was for “Stakeholders” in the asylum system: Advocacy groups, lawyers, even–I suppose–people who want to restrict the asylum process. But the meeting is specifically not for the media. The invitation reads, “Note to media: This engagement is not for press purposes. Please contact USCIS Press Office… for any media inquiries.”

It just so happens that I also attended the meeting in question, which was led by the Asylum Division Director, John Lafferty. About 50 people were present, including USCIS staff, private lawyers (like me), and representatives of various organizations involved with asylum law.

During the first part of the meeting, each person introduced himself and stated the name of his organization. If Ms. Rush introduced herself, I do not remember. But certainly she did not reveal that she was representing CIS – everyone there knows the anti-immigration group and her presence at the meeting would have raised some eyebrows.

Ms. Rush also did not reveal that she was attending in her capacity as a journalist. Perhaps she hoped to discover some dirt or some secret conspiracy between USCIS and asylum advocates. Maybe she covertly recorded the meeting, Planned Parenthood-style, with the hope of exposing something nefarious. Apparently, she did not find anything too damning, but fear not–in the absence of evidence, you can always make stuff up.

From the meeting, Ms. Rush claims to have learned that “Officers interview asylum seekers by phone in 60 percent of the cases (except for families who are already in detention centers).” In her piece, “Most Asylum Applicants Are Interviewed by Telephone. Feel Safer?“, Ms. Rush notes that it’s hard enough to assess an applicant’s credibility, but if the officers cannot even look the applicant in the eye, fraudulent asylum seekers–including potentially dangerous people–can scam their way through the system. “Call me skeptical,” she writes, “but I don’t see how this subjective assessment [of asylum seeker credibility] can be obtained through a telephone conversation.”

So the premise of Ms. Rush’s article is that 60% of asylum seekers are interviewed by phone. If this were true, it would be cause for concern. However, the actual number of asylum seekers interviewed by phone is more like 0%. That’s zero. Zilch. Nada. None. In fact, every asylum applicant interviews in-person, face-to-face, with an Asylum Officer. So what is Ms. Rush talking about?

My best guess is that she has confused (or deliberately conflated) asylum interviews and credible fear interviews (“CFI”). The purpose of an asylum interview is to determine whether an applicant may be granted asylum, and thus the legal ability to remain permanently in the U.S. The purpose of a CFI is to determine whether an applicant presents a prima facia case for asylum. If the applicant meets this minimal standard, she will then be sent to an Immigration Judge (or in the case of a minor, an Asylum Officer) to determine whether asylum should be granted. If the applicant fails the credible fear interview, she will be deported. Many credible fear applicants are interviewed by phone, but since this is only an initial evaluation of the case, and since the only purpose is to assess whether the person has articulated a fear of return to her country, credibility is not really a consideration. If the person “passes” the CFI and then presents her asylum case, she will have an in-person interview (or a trial) where credibility is carefully considered.

From all this, it seems that Ms. Rush is either so unfamiliar with the asylum process that she confused two basic concepts (asylum and CFI), or she understands the asylum process and she is a big liar. My guess is that it’s the latter. Why? Because the article is not the only instance of Ms. Rush’s dishonesty when it comes to refugees.

Take, for example, Ms. Rush’s recent report on the UN’s Role in U.S. Refugee Resettlement, where she claims that the “United States is entrusting the staff of the United Nations High Commissioner for Refugees (UNHCR) with the entire selection and pre-screening process of Syrian refugees eligible for resettlement in the United States” (the emphasis is mine). The implication is that the UN determines who comes to the U.S. as a refugee. This is completely false. The UN refers refugees to the U.S. government, which then independently screens them and performs background checks (I’ve written about this process here). Ms. Rush’s fear-mongering and dishonesty about Syrian refugees suggests that her motivation is to score political points, regardless of the facts.

Frankly, I am not particularly bothered by Ms. Rush attending the Asylum Division meeting under false pretenses and then writing about it. I happen to believe (like her, I think) that the system should be more transparent. What bothers me is that she would attend the meeting and then deliberately distort what she heard.

As I have written before, there are legitimate arguments for limiting the number of refugees and asylum seekers we admit into the United States. We as a country should be discussing these issues, and organizations like CIS have an important role to play in that conversation. But when CIS distorts the facts in order to advance its argument, it impoverishes the debate and damages its own credibility. Hopefully, in the future, CIS and Ms. Rush will be more responsible and more honest as we continue to discuss this important topic.

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Easing the Burden of Asylum Seekers… a Bit

by Jason Dzubow

It’s rare these days that I actually have good news to report from the Asylum Office, but recently there have been a few small improvements that are worth noting. These are not earth-shattering changes, to be sure, so don’t get too excited, but they do represent movement in the right direction.

There are plenty of things you can do without an EAD.
There are plenty of things you can do without an EAD.

First, as you may know, there are now long delays applying for and renewing the Employment Authorization Document (“EAD”) – the work permit. As the law now stands, you  must wait 150 days after filing the asylum application before you can apply for an EAD. During this period, it is often impossible to get a driver’s license or a job, or to attend school, so the sooner the EAD arrives, the better.

We used to see clients get the EAD in a month or two after filing, but recently, it is more like four months. Combined with the 150-day waiting period, this means that asylum applicants are waiting about nine months from the time they file for asylum until the time they receive their EAD. That’s a long time to be without the ability to get a driver’s license or a job, and it is one of the hardest parts of the application process.

After the EAD is received, it must be renewed every year. The earliest a renewal can be submitted is 120 days before the current EAD expires. But the renewals also take about four months, so even if you remember to file the renewal at the earliest possible date, you may end up with a gap between the old work permit and the new. This could cause you to lose your driver’s license or your job, and it is quite stressful for many people.

Fortunately, there is some relief in sight. Under new proposed rules, USCIS would automatically extend the EAD at the time the application for renewal is filed. In other words, when you submit the form I-765 to renew your EAD, you will receive a receipt after a few weeks, and this receipt will automatically extend the validity of your existing EAD. This rule also applies to EAD applications for refugees and asylees (people granted asylum), and a few others.

The rule has not gone into effect yet, and I am not 100% sure it is a done deal (though I do not see why they would change their mind). Perhaps if you are an asylum seeker who would like to see this rule implemented, you can tell USCIS about the hardship you’ve experienced due to EAD delays. Anyone is allowed to comment on the new rule by emailing USCISFRComment@dhs.gov. If you email them your story, you need to include the reference number of the rule in the subject line of your email, as follows: “DHS Docket No. USCIS-2015-0008”.

Perhaps coincidentally, I made this exact proposal for EADs a few months back. I presume that USCIS listened to me and they will be sending me a fruit basket to thank me for the good idea. Maybe they missed the other part of my proposal, where I suggested that EADs should remain valid for two years instead of one, but the automatic extension is a good start, and it will be a welcome relief for thousands of asylum seekers.

The second bit of good news is more minor, but it is still a positive development. It used to be that when submitting the asylum application (form I-589) and supporting documents, we were required to submit the original and two copies. The new rule is that we submit the original and one copy. OK, perhaps this is only something a true asylum geek can get excited about (and maybe “excited” is too strong a word), but it does save some money and some trees, so that is all good.

For me, these changes (particularly the change related to EADs) are a sign that USCIS recognizes the new reality created by the backlog: People are going to wait for a long time, and this is a hardship that needs to be addressed. If USCIS is willing to help out with EADs, I would hope that even more changes are coming. As I discussed previously, a few low-cost improvements might include prioritizing people separated from family members, making the Advance Parole process easier, and making the asylum application and waiting process more transparent. But that is a discussion for another day. For now, we can be happy that the burden on asylum seekers will be made a little lighter.

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Climate Change and the End of Refugee Resettlement

by Jason Dzubow

Some observers believe that one of the root causes for the war in Syria is climate change. Starting in the first decade of the current century, drought and warmer temperatures in Syria pushed about 1.5 million people to move from their farms into cities. This more volatile atmosphere helped lead to war.

Aquapalypse Now: Rising sea levels may create millions of new refugees
Aquapalypse Now: Rising sea levels may create millions of new refugees

So one effect of climate change may be to increase competition for scarce resources. Increased competition = more wars = more refugees.

Another source of climate refugees is rising sea levels. As the water rises, certain areas and certain countries might become uninhabitable. People will have to be relocated. Many will be able to move within their own countries, but others will be forced to leave their homelands.

The potential for mass movements of people across national borders is very real, and some experts predict that the new flow of climate refugees will dwarf anything we’ve seen thus far. That’s a scary thought, and for those of us involved in refugee resettlement, it represents an existential challenge: If tens or hundreds of millions of people are on the move, how do we accommodate them?

And what about the current international legal regime? By definition, a refugee is a person who cannot return to his country owing to persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or particular social group. Many people fleeing Syria can meet this definition (some of our cases, for example, are shoe-horned in by presenting the claim as one based on imputed political opinion—even if they are not politically active, the Syrian government believes they are political opponents and that is enough for a grant). However, people who flee because their homes are flooded or because their crops have failed are not “refugees” as that term has been defined in international and U.S. domestic law. They are not being “persecuted” by anyone, except perhaps Mother Nature, but I don’t think that counts. So what do we do with them?

As we’ve seen with the exodus from the Middle East to Europe and, on a smaller scale, from Central America to the U.S., the mass movement of people creates many challenges—social, economic, political, and moral. There is also great resistance by many segments of the community to accepting large numbers of foreigners. If that is the case, what will become of the new climate refugees? Will they be confined to UN-supported camps in the countries of first arrival? Will they remain in such places indefinitely? What is the end game for people who can never return home? How will the world order be affected by millions of stateless refugees, who live without hope and who may become a destabilizing influence on the host countries?

Of course, I have no answers to any of these questions. Given the state of the problem today (over 59 million forcibly displaced persons worldwide, including about 19 million refugees) and the number of people who are annually resettled (about 626,000 were recognized as refugees or received some form of protection), I am not optimistic that we will accommodate millions more refugees in some dystopian (but probably not distant) future. One thing is true, if we see much larger numbers refugees in the world, we will have to deal with them in some way.

One solution is to close our doors and try to keep the problem as far away from home as possible. This is essentially the path favored by several main-steam restrictionists groups. Indeed, the Center for Immigration Studies (“CIS”) and the Federation for American Immigration Reform (“FAIR”) both originated from concerns about immigration and the environment. The leading founder of these groups, John Tanton, viewed the mass movement of people as a threat to the environment, and favored restricting immigration as a way to protect the environment. It also happens that he was a bit of a white supremacist, but I suppose that is not particularly relevant to the environmental argument.

As you might guess, I am not a fan of the environmental argument (or the white supremacist argument, for that matter). People who move from poor countries to rich ones probably use more resources in their new homes than if they’d stayed put, but they also have a better quality of life and they generally enrich the societies they move into (in 2014, for example, immigrants made up 12.9% of the U.S. population, but started 28.5% of new businesses). I am not sure how to balance this with the environmental impact, but when you add in the fact that many people are fleeing persecution or environmental disaster, the balance for me tips in favor of protecting people by allowing more migration.

That said, I’m also not convinced that the U.S. and Western Europe can or should absorb millions of new refugees. There is a limit to how many people we can resettle and still maintain our social cohesion. I am not sure what that limit is, though it seems clear that we can do more than we are doing now. But the West cannot do it alone–if we see mass migrations due to climate change, the task of assisting and resettling people will need to be distributed across the globe.

As a father and an uncle (and a person who is generally rooting for the human race), I hope that the world’s leaders will make genuine efforts to curb global warming. As someone concerned about refugees and migration, I hope that we will respond to climate refugees with compassion. Climate change is a great challenge to mankind. I hope that we can meet that challenge and retain our humanity.

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Asylum Seekers Gone Wild

by Jason Dzubow

Police officials in Cologne, German have received over 500 criminal complaints about attacks that occurred this past New Year’s Eve. Forty percent of the attacks involved a sexual offense, and a large majority of the victims were women. Most of the culprits “were said to have been of a North African or Middle Eastern appearance,” and so far, 22 of the 32 identified suspects are asylum seekers. Similar assaults were reported in other European countries.

Perhaps in this case, the solution is worse than the problem.
Perhaps in this case, the solution is worse than the problem.

Not surprisingly, those who oppose refugee resettlement have seized on the attacks to denounce Germany’s generous asylum policy. There were also several xenophobic assaults on refugees, supposedly in retaliation for the New Year’s Eve incidents.

The whole situation seems a bit strange to me: What exactly did these asylum seekers (and others) do? Why did this happen now? Have there been previous attacks that we have not heard about? What explains this behavior?

First, based on the reports I have seen, I am really not sure what happened. Was this Spring-Break type debauchery exaggerated by anti-refugee hysteria, or something much worse (there is at least one report of Syrian nationals raping two girls at a New Year’s Eve party, but the suspects are not asylum seekers and the incident seems unconnected to the other attacks)?

I must admit that I am of two minds about this question. On the one hand, if scores of young women are reporting sexual assaults, that is deadly serious and must be addressed forcefully. On the other hand, I am wary of the old trope where the swarthy foreigner violates the innocent white female. This same story has been used many times to justify violence against “the other.” For example, last year a young man entered an African-American church in South Carolina and murdered nine people, yelling at them: “You rape our women… You have to go!” Jews have long dealt with this issue in Europe, where for many centuries, we were “the other” (until Hitler eliminated that problem). In those days (and unfortunately still today in some places), Jews were accused of killing Christian babies in order to use their blood for ritual purposes. These “blood libels” were notorious lies, but they were used as an excuse to harm Jews. There’s a tragic/comic joke about the blood libels that I’ve always appreciated:

In a small village in the Ukraine, a terrifying rumor was spreading: A Christian girl had been found murdered. Realizing the dire consequences of such an event, and fearing a pogrom [a murderous anti-Jewish riot], the Jewish community gathered in the synagogue to plan whatever defensive actions were possible under the circumstances. Just as the emergency meeting was being called to order, in ran the president of the synagogue, out of breath and all excited. “Brothers!” he cried, “I have wonderful news! The murdered girl is Jewish!”

You get the point. Obviously, this does not mean that the attacks in Cologne did not happen the way they have been portrayed, but it does urge us to be cautious in drawing conclusions, especially since there is so little publicly-available detail about those attacks.

Assuming that the initial reports are correct and the attackers are asylum seekers, what is going on here? Maybe one explanation is that the asylum seekers in question are young men from sexually repressive countries who have been living in instability for many months. Now that they are in safe, open societies, where men and women mix freely, they cannot handle the adjustment. Not to let them off the hook—if they are guilty of assault or other crimes, they should be punished—but when refugees behave badly, there are often underlying pathologies that need to be examined. Maybe it is too late for these particular refugees (who might be deported), but at least this highlights an issue that can be addressed for other asylum seekers with similar backgrounds.

Another explanation–the one favored by opponents of refugee resettlement–is that asylum seekers are a danger to the receiving communities, and that their values are incompatible with Western society. The New Year’s Eve attacks, under this theory, are just one iteration of the problem. I think this view is incorrect. Refugees are not perfect, but the evidence suggests that they are no more likely to commit crimes than anyone else.

But of course, many refugees are damaged people who have suffered trauma. They come from societies that are much more repressive and conservative than those in the West. While these factors may help explain criminal behavior among refugees, in my opinion, they do not in any way excuse it. Nevertheless, we need to keep this in mind when considering refugee resettlement. We need to help refugees deal with their trauma. We also need to help them understand and integrate into their new communities. This is easier said than done, especially in a situation like Germany’s, where tens of thousands of people are arriving each month.

In the U.S., our refugee numbers are much lower, and we are more able to help people adjust to their new lives. As a result, the overall crime rate for non-citizens seems to be the same as, or lower than that for native-born Americans. Vetting refugees and helping them integrate is the best way to protect ourselves, while at the same time meeting our humanitarian obligations and ideals.

The doors to Europe appear to be closing, and the New Year’s Eve attacks will only make things more difficult for all refugees. My hope is that we in the West will learn from this experience. Receiving countries should step up their efforts to recognize and pro-actively address the psycho-social needs of refugees, so that they will better acculturate to their new homes. This, to me, is the best way forward for everyone.

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Some Good News from Asylum-Land

by Jason Dzubow

For those of us involved with refugees, 2015 was not a great year. Never-ending turmoil in Syria, Iraq, and Afghanistan have resulted in unprecedented numbers of people fleeing their homelands. The flow of asylum seekers arriving at the Southern border of the U.S. from Central American and Mexico has not let up. Our Asylum Offices and Immigration Courts are increasingly backlogged, and it’s reached a point where the basic integrity of our humanitarian systems seem in jeopardy.

If you're on a sinking ship, you should celebrate when you can.
If you’re on a sinking ship, you should celebrate when you can.

Sometimes I think that in order to continue working in this field, you have to be either freakishly optimistic or pathologically disassociated from reality. I’m not sure I fall into either category, yet I’m somehow still in the game.

In any event, one thing that helps is to remind ourselves of our successes. In that vein, I thought I’d look back at a few pieces of good news we’ve had in my office during the past year:

Particular Social Group (Sexual Orientation)/Rwanda – I’ve always had an interest in folklore and magic, and so when there is crossover with an asylum case, it peaks my interest. This year I worked on the case of a young gay man from Rwanda, who was kidnapped by his family members and subjected to a bizarre and terrifying exorcism ritual. Rwanda is not a safe place for LGBT people in the best cases, and when your family is out to get you, it’s even worse. The asylum office recognized that my client suffered past persecution and granted him asylum.

Political Opinion/Haiti – My client was a political activist who had worked closely with Paul Farmer, a world-renown physician who founded Partners in Health and who is the subject of an award-winning biography, Mountains Beyond Mountains. Dr. Farmer wrote a two-page single-spaced letter describing my client’s persecution. I figured that the letter–and a ton of other evidence, including photos with the former president of Haiti–would have been enough for a grant at the Asylum Office. But unfortunately, our Asylum Officer failed to question my client about his past persecution, and when we asked whether the client should discuss it, she told us that it was not necessary, as she read about it in the written statement. She then denied the case because we failed to demonstrate past persecution. Needless to say, I was not pleased. But earlier this year, we went to court where the DHS Trial Attorney did not understand why the case had been referred to the Immigration Judge. She and the Judge agreed that my client should get asylum, which he did. The court hearing took all of three minutes.

Refugee Waiver/Cameroon – My client had come to the U.S. and received asylum due to political persecution in Cameroon. Unfortunately, he fell in with the wrong crowd and got involved in a fraudulent check cashing scheme. As a result, he went to jail for two years and was then put into ICE custody for deportation. Fortunately for my client, there is a waiver available for refugees under INA § 209(c), which is very effective (a waiver is a legal mechanism for requesting forgiveness from the U.S. government in order to avoid deportation). The Immigration Judge granted relief, and after almost three year in detention, my client walked free that afternoon.

Political Opinion/Nepal – My client had been a local activist with his political party. As a result, Maoists guerrillas attacked him in his home and sent him to the hospital. He came to the U.S., but did not seek asylum within one year (as is required). After having spent half-a-dozen years in the U.S., the Maoists resurfaced and threatened his wife. We applied for asylum and claimed that the new threat constituted “changed circumstances,” which is an exception to the one-year filing rule. Luckily for us, the Trial Attorney agreed that my client was entitled to an exception and asylum was granted.

Imputed Political Opinion/Syria – My client was affiliated with a man who the Syrian government deemed an enemy, and this was enough to cause him to fear return to his country. The problem was, he had to leave his wife and young child in a Gulf country because they could not get visas to the United States. After a long ordeal (thanks to the backlog) during which the child could not attend school or get medical treatment (thanks to the inhumane policies of the Gulf countries), we were finally able to get his case expedited. He was granted asylum and–after three years–he finally reunited with his family earlier this month.

Particular Social Group (Family)/El Salvador – My client was a young girl whose mother had testified against her former boyfriend, a member of the MS-13 gang. The ex-boyfriend and other gang members had been threatening the mother and my client from jail. My client’s family feared that she would be harmed once the ex-boyfriend was free, and so they sent her North. Because she was a minor, the Asylum Office (rather than the court) had jurisdiction over her case, and she was granted asylum. Now we’re waiting for her mother’s case, but since the daughter already received asylum on the same facts, we’re optimistic about the mother’s chances.

Religion/Afghanistan – My client was a well-known singer in his country. But since the Taliban are not fans of music and believe musicians are infidels, he ran into trouble. The Taliban threatened to kill him, and so he came to the U.S. for asylum. After a long delay, and a difficult separation from his family, the case was granted. We are now waiting for his family members to join him in the United States.

I rarely take time (or have time) to look back on completed cases, and it is encouraging to think about the people who have succeeded. I’ll try to keep some of these happy thoughts in mind as we move on to new challenges in 2016. Happy New Year!

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