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.
Moving to another country can be challenging and confusing. Navigating that new country’s legal system can be downright maddening. As an asylum attorney, I’ve observed my clients’ behavior in Immigration Court, the Asylum Office, and during USCIS interviews, and I’ve accumulated a list of do’s and don’ts (mostly don’ts) for interacting with immigration officials. So, in no particular order, here’s what to do and not do, when you appear for your hearing or interview–
Do turn off your cell phone (don’t put it on “silent” or “vibrate” – turn it off)
Do dress respectfully
Do not wear a hat (unless it is religious garb, like a hijab or kippah)
Do not engage in fake emotional outbursts, like crying or screaming uncontrollably – it is not culturally appropriate in American, and it will potentially make the decision-maker uncomfortable, embarrassed or angry (you can express your emotions – just don’t be fake)
Don’t wear perfume or cologne
Do do these do’s or you’ll be due for deep doo doo (times deux).
Don’t answer a question when you do not know the answer – Don’t guess!
Do take a bath beforehand
Don’t tell the decision-maker that she is good-looking, smart, professional, well-dressed, brilliant, funny, Christ-like or anything else that resembles kissing her ass – this will probably only aggravate and/or creep out the person you are trying to flatter
Do tell the truth
Don’t cry and beg for a good decision
Do turn off your cell phone (I mean it!)
Do use the bathroom before your interview or hearing, so you do not have to interrupt proceedings to run to the potty
Do not lose your temper with or be disrespectful to the Immigration Judge, DHS attorney, Asylum Officer, interpreter, clerk, security guard or anyone else involved in the process
Do not chew gum (or tobacco, toothpicks or anything else)
Don’t bring small children to the court or the interview unless they are required to be present
Do bring all your original documents with you (all passports, birth certificates, marriage certificates, divorce documents, school and work records, military records, medical documents, death certificates, police reports, ID cards, photos, witnesses letters, etc. – in short, if you submitted a copy of it, bring the original if you have it)
Do show up on time (or better yet, show up early)
Don’t answer questions that you do not understand (just say, “Sorry, I do not understand the question”)
Don’t take advice from friends or family members if they do not know what they are talking about
Do be friendly and make eye contact
Don’t avoid responsibility for bad things you did, such as criminal conduct or prior misrepresentations – if you take responsibility, express remorse, apologize, explain how you have changed, and show that you will not repeat the bad behavior, you are most likely to overcome the problem (of course, if you have a criminal or misrepresentation issue, you should talk to a lawyer for guidance)
Do get a good night sleep beforehand (even though this can be difficult)
Do listen carefully and respond to the question that is asked; not to the question that you wanted them to ask
Do not try to avoid the questions or change the subject
Don’t interrupt other people, especially Judges, Trial Attorneys, and Asylum Officers
Don’t get flustered – if you are losing your cool, take a breath, or ask for a moment to compose yourself
Don’t leave your cell phone on – shut it off! (did I already mention this?)
Do stand up when the Judge enters the courtroom
Do not repeat the entire oath after the Judge or Asylum Officer asks whether you swear or affirm to tell the truth – just say, “I do” or “yes”
Do speak slowly and clearly, and, if you are using an interpreter, break up long answers into shorter bits so the interpreter can accurately translate everything you say
Do not bring weapons or other prohibited items to the courtroom or Asylum Office
Do not roll your eyes or use other disrespectful body language
Do answer questions verbally – you cannot nod your head for “yes” or “no”
Do sit up straight
Do not plead “Not guilty!” at the Master Calendar Hearing
Do think before you speak – Why are you being asked this question? What might the questioner have in mind?
Don’t answer a question in court if your attorney objects to that question – let the Judge make a decision on the objection. Depending on how the Judge rules, you may not be required to answer the question
Do not forget where you are and get too comfortable/familiar – remember, you are being judged (literally)
Do not use curse words or rude language, unless it is part of the story you are telling
Do not refer to the Immigration Judge as “Your Lordship,” “Your Majesty,” “Your Highness,” “Oh Great One,” “Your Holiness,” “He Who Must Not Be Named,” or any other unusual sobriquet – in the U.S., we say “Your Honor”
Do not refer to the Asylum Officer by any weird sobriquets either – you can call the officer “Officer” or “Sir” or “Ma’am”
Do review your case before any hearing, and think in advance about how to respond to difficult questions
And most important of all, Do pay your lawyer (especially if you are my client!)
So that’s about it. This list is not comprehensive, of course, and so if you have any suggestions, please let us know. And in case I forgot to mention it: Turn off your cell phone!
Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).
Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?
Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.
I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.
Judge Denise Slavin
I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.
I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.
I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.
Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?
Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.
As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.
I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.
Asylumist: What about lawyers who are bad actors, and who violate the rules?
Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.
Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?
Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.
As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.
Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.
Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?
Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.
As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.
Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?
Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.
Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.
The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.
In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.
Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.
Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?
Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.
As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.
Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.
The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.
These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.
Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.
The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.
Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.
Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?
Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.
The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.
Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.
Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.
Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.
The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.
Asylumist: How would it help if Immigration Courts became Article I courts?
Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.
There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.
If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.
Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.
I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.
EOIR has released a new “Myths vs. Facts” brochure.
This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:
Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more. Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.
Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream. Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.
Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS. Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!
Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget. Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.
Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration. Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…
So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?
The vast majority of Immigration Judges, DHS attorneys, Asylum Officers, and USCIS officers are professional and respectful. But what if they are not? What do you do then?
First off, I think it is important to understand that the bad officials are a small minority. I’ve been to many interviews and court hearings, and I’ve only ever made one complaint (against a USCIS officer at a Green Card interview). In other words, at least in my experience, government officials in immigration-world are generally pretty good.
Now admittedly, I am a lawyer and I know my clients’ rights and what to expect from “the system.” Pro se (unrepresented) applicants may not receive the same level of respect. They are easier to abuse, and it is more likely that decision-makers will cut corners in cases where the applicant is unable to protect herself.
That said, I am also involved in the BIA Pro Bono Project, where I review a dozen or so unrepresented appeals cases each month. I see the transcript of the Immigration Court case, and I can read how the Immigration Judge and the DHS attorney treated the applicant. While it is fairly common to see Judges and DHS attorneys moving quickly through a pro se hearing, it is also common to see these same officials taking extra time to ensure they are properly adjudicating the case. Once in a while, I see a case where the Judge steamrolled the proceedings to reach a quick decision, but that is the exception. In most cases, even those that were adjudicated quickly, the outcome seems fair, given the available evidence and testimony (one big caveat – many of these pro se cases are not well developed and are lacking in evidence. This is because the cases we review are for individuals who are detained. If these people had access to a lawyer and could better prepare their cases, many—even most—would achieve a better outcome).
The government takes your complaints very seriously.
While outright hostility and rule breaking seem quite rare, adjudicators can sometimes be testy, intimidating or unfriendly. What to do if you have the bad luck of encountering a hostile or impolite decision-maker?
The first thing to do is to remain calm. The demeanor of the decision-maker is often unrelated to the outcome of the case, and we have seen examples where an unfriendly officer issues a positive decision. Remember too that this person is not someone you will likely ever encounter again in your life. All you want from him is a favorable decision. Even if your experience at the interview is unpleasant or frightening, that won’t matter much if the case is granted. If you can keep your cool, answer all the questions, remain polite, and not lose your composure, you increase the likelihood of a good result. Getting angry, or arguing with the decision-maker is unlikely to get you the decision you want.
Second, make your record. This means, if you have something that you think is important to say, you should try to say it. In other words, don’t let an aggressive officer or judge intimidate you into silence. Court hearings and some USCIS interviews are recorded. Asylum Officers are supposed to write down everything you say (and if they do not write down what you say, you can complain to a supervisor). Even if you are ultimately prevented from saying something, if you indicate that you had something else to say, that exchange might be reviewed on appeal (or by a supervisor) and could result in a new trial or interview.
In making your record, you can be explicit. You can say to the judge or officer, “I think you are treating me unfairly because you are not allowing me to talk about X.” Say this politely and calmly, and it might soften the decision-maker’s stance. Say it aggressively, and you will likely harden the decision-maker’s position. I remember one case where the DHS attorney seemed (to me at least) to be taking a very aggressive position towards my asylum-seeker client. Finally, I simply asked (politely) why DHS was so opposed to asylum in the case. The attorney explained his motivation, which helped me better understand the case, and ultimately, the client received asylum.
Third, especially if you are unrepresented, you should write down what happened after the interview or court hearing. When things go wrong, it is important to try to understand what happened, and the more information you have, the better. If you write down what happened immediately, the information is more likely to be accurate. This will be useful if you later want someone else, like a lawyer, to review the case. It is also important if you need to make a formal complaint against the decision-maker.
Finally, if you feel you were subject to unfair treatment, you can make a complaint. Different forums have different procedures for complaining. For example, if you are with an Asylum Officer, you can ask to speak with a supervisor. You do this during the interview itself by telling the Asylum Officer that you would like to speak to a supervisor. For an Immigration Court case, you would typically contact the judge’s supervisor (called the Assistant Chief Immigration Judge) after the court hearing, or–more typically–you would just file an appeal to the Board of Immigration Appeals.
Periodically, I receive decisions that I think are wrong or unfair, but my clients have never been subject to treatment by an Asylum Officer or Judge that warranted a complaint. I did make a complaint once about a USCIS officer. I spoke to the officer’s supervisor immediately after the interview, and then sent a written complaint directly to the supervisor. I do not know whether the officer herself was informed of the complaint (I never saw her again), but I do know that my client’s case was approved in short order.
Most Immigration Judges and Asylum Officers are professional and respectful, and so hopefully, you will never encounter an official who is treating you unfairly. But if you do, keep calm, remain respectful, and politely make the points you need to make. This is the best way to maximize your chances for a positive decision.
As you may have heard, parts of the federal government are closed for business. After two years of Republican inaction on “the wall,” somehow President Trump has decided that now is the time to shut the government down in an effort to “permanently fix the problem on the Southern Border.” Let’s look at the effect of the shutdown on immigration generally, and on asylum more particularly.
In immigration world, the biggest–and most ironic–effect of the shutdown has been to close most of the nation’s Immigration Courts. Courts that handle detained cases are still operating normally, but non-detained courts are closed. The irony is that shuttering the courts will have the effect of delaying the deportation of many aliens. On average (and based on current projections for FY2019), Immigration Judges will deport about 676 people per day. If we remove detained cases from the mix (very roughly speaking, detained cases make up about 13% of all Immigration Court cases), we can estimate that for each day the government is shut down, 588 people are spared from deportation. Given the long backlog in Immigration Court, most people with postponed cases will probably not return to court for another year or two, and so such people will be able to remain the U.S. far longer thanks to the shutdown.
$5,700,000,000 wall vs. $79 ladder.
Also from the Irony Department: The lapse in government funding means that Border Patrol agents–the very people who are supposed to guard our Southern border–will not be paid until the shutdown ends. As you can imagine, this is not great for morale. In addition, the E-Verify System, which allows employers to check whether a particular person is authorized to work, is down. If this “electronic wall” is not working, some “illegals” may be able to work. These results seems contrary to Mr. Trump’s stated goals of deporting more people and fixing the broken immigration system, but what else is new?
Of course, many asylum seekers will not be very happy about having their court cases delayed. Some have been waiting years for a decision, all the while separated from family members and living with great uncertainty. For such people and their families, the delay is heartbreaking.
To check on the status of the Immigration Courts, you can visit the EOIR website, which will indicate whether operations have resumed. If your court case is postponed due to the shutdown, the case will be rescheduled once the lapse in funding has been resolved. From EOIR:
Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.
In other words, the Immigration Court will send you or your lawyer a written notice for the new hearing date. You can also check the Immigration Court hotline, which indicates when your next hearing is scheduled. The phone number is 800-898-7180. This is a computer system; not a person. When it answers, follow the instructions and, when prompted, enter your Alien number. The system will tell you your next hearing date. Unfortunately, the hotline will not be updated during the shutdown, but once the situation is resolved, you can check for your next appointment (whether cancelled Individual Hearing dates will be set for another Individual Hearing or a Master Calendar Hearing, we do not yet know).
What if you want to file documents, evidence or a change of address with the Immigration Court? Immigration Courts and the Board of Immigration Appeals (“BIA”) are accepting filings for detained cases. As I understand, most courts are also accepting filings for non-detained cases, but such filings will not be acted upon. The problem is that such filings may get lost in the avalanche of documents that the courts receive. This problem will be especially acute if the shutdown drags on for weeks or months. My advice: If you have a deadline, file your documents, but make sure to keep a copy for yourself and have evidence that you filed (if you can file in-person, the clerk will stamp your copy of the documents; if you file by mail, you should keep a copy of the certified mailing receipt). If you do not have a deadline or an emergency, it is probably better to wait until the shutdown ends before filing any documents with an Immigration Court or the BIA.
For asylum seekers and immigrants who do not have court cases, the shutdown is far less consequential. USCIS obtains its budget from “customer fees” (i.e., money you pay for your green card, work permit, etc.), and so the lapse in government funding is not an issue (there is currently no fee for asylum, but USCIS customer fees fund the Asylum Offices). As a result, the Asylum Offices, USCIS offices, and Application Support Centers (the place that takes your fingerprints) are all operating normally. While this is unlikely to change, there is no harm in double checking before you make the trek to your appointment. You can do that here.
One final question is, How long will the shutdown last? Of course, we do not know. The longest shutdown to date occurred during President Clinton’s term, and lasted 21 days. The current shutdown began on December 22, 2018, and so as of this writing, we are approaching Mr. Clinton’s (or more accurately, Newt Gingrich’s) record. The shutdown is inflicting much damage on our country, including to some immigrants and asylum seekers. Let’s hope that our leaders can bring an end to the impasse as soon as possible.
According to recent reports, the Trump Administration is considering charging $50.00 to apply for asylum in the United States. If the purpose of this fee is to dissuade people from seeking asylum, it is a stupid and cruel idea, which may violate our treaty obligations. If the purpose is to raise money to help cover the costs of the asylum process, it is merely a stupid idea.
Here is what we know so far. The Trump Administration is working on a new regulation that would require applicants who are already residing in the United States to pay $50.00 to apply for asylum. “The fee would not apply to those who claim a fear of persecution at ports of entry or those who apply for the protections while in deportation proceedings.” “There would be no waiver of the fee for those who cannot afford to pay the $50.” Currently, of course, there is no fee to file for asylum.
Why is this idea so dumb?
If the fee is meant to deter people from filing for asylum, few will be dissuaded by such a low amount. The only applicants who would potentially be blocked by this fee are those who are particularly vulnerable, such as children. In most such cases, non-profit organizations would probably cover the costs, but this will be burdensome for the non-profits, many of which are already suffering from insufficient resources. So in practical terms, this fee would block few people from asylum, but it would create a further strain on organizations that assist asylum seekers.
Wait in line for asylum with the hoi polloi? Never!
To the extent that anyone is blocked from asylum by this new policy, the fee might violate our treaty obligations (not to mention our moral responsibility to people fleeing harm). For example, Article 25 of the Refugee Convention contemplates “exceptional treatment” for indigent asylum seekers, and so people blocked by the fee would have grounds for a suit against the federal government.
Also, the idea of charging a nominal fee to people fleeing harm is just plain cruel. Many asylum seekers have suffered past harm, and they are already fearful and traumatized. The legal changes and malicious rhetoric of the Trump Administration have already increased the stress level for these vulnerable people. A filing fee would be one more indicator of how unwelcome asylum applicants are.
In addition, asylum seekers often must wait for many months before they can obtain permission to work in the United States. Talk to most asylum seekers, and you will hear stories of great financial difficulty. Many have lost property and assets at home, and are living off their savings or the goodwill of family and friends. A filing fee under these circumstances is one more strain on people who are often in dire financial straits.
Finally, asylum seekers already pay plenty of fees. Although they do not pay directly for the asylum form, they often employ lawyers and experts, or have to pay for mailing and copying fees for their evidence, and for transportation to their interview. In addition, for people granted asylum, there is the fee for the green card (currently $1,225.00) and for U.S. citizenship ($725.00). Obtaining status in the United States is not cheap, and given that they have to pay for other steps in the process, asylum seekers are pulling their weight.
If the purpose of the fee is to offset the government’s costs, perhaps there is a better way. First of all, the $50.00 fee will do little to help the government. Given that the fee will only apply to certain affirmative asylum applicants, the amount of money generated will not be significant. Based on the current number of cases filed, a $50.00 fee would add less than $5 million to the government’s coffers per year. I have not been able to find recent data on USCIS’s budget, which is almost entirely funded by user fees, but in 2008, that budget was $2.6 billion. Presumably, it is more today. Even using the 2008 figure, $5 million represents less than 0.2% of the total.
If the government wants to make a profit from asylum seekers, maybe an alternative solution is to allow “premium processing” for asylum cases. Certain types of applications allow the alien to pay an additional fee (currently $1,410.00) to have their case processed more quickly. Some asylum seekers would probably be able to afford such a fee (remember, asylum seekers have made their own way to the U.S., usually by paying for transportation and sometimes by paying a smuggler). So perhaps there is room here to make a deal (I know how much President Trump loves a good deal).
I’ve previously spoken about this idea to the muckety-mucks at the Asylum Division (and I’ve written about it here as well). I think the main objection was optics–it looks bad to charge asylum seekers a fee, and it looks bad to allow asylum seekers with money to jump ahead of those without. I get that. But now we are in a new world. The government seems to be moving forward with fees for asylum seekers. If so, at least one of these objections is off the table.
As for the fairness argument (people with money should not be processed before people without money), in my opinion, that fails as well. Name one thing about asylum that is fair? The idea of fairness just doesn’t apply to asylum, so why apply it to premium processing? Earlier this year, we switched from FIFO to LIFO, so people who apply today are often interviewed before people who have been waiting for years. Is that fair? Asylum seekers with money hire fancy lawyers to help with their cases. This isn’t fair either. So for me, at least, the fairness argument falls flat.
This is especially so given that allowing “rich” asylum applicants to pay a fee would benefit everyone in the system. People who could pay the fee would benefit the most, and their cases would move the fastest. But the infusion of money into the system and the removal of “premium” cases from the queue would benefit everyone. Even those who do not pay should see their cases processed faster than they are moving today.
So instead of charging all applicants, including indigent applicants, $50.00 to file for asylum, let’s allow those who can afford it to pay for premium processing ($1,410.00 or some other fee that makes sense). This will offset costs for the government and benefit all asylum seekers.
The indefatigable folks at TRAC Immigration have issued a new report about our nation’s Immigration Courts, and the news is not encouraging: Overall asylum denial rates are the highest we’ve seen in almost two decades. As always with asylum numbers, things are not quite so simple, so let’s take a look at what’s going on.
Fiscal Year 2018 (which ended on September 30, 2018) was noteworthy for several reasons. First, the asylum denial rate reached 65%. This caps a six year trend of increasing denial rates and represents the highest rate of denial in 20 years (between 1986 and 1999, denial rates ranged from 68% to 89%). In some ways, the news from FY2018 is worse than the average denial rate indicates. If you look at TRAC’s month-to-month chart, you can see that denial rates spiked between June 2018 and the end of the fiscal year. Thus, in the last few months of the fiscal year, denial rates were pushing 70%.
Rejection rates also went up after each Immigration Judge received a fancy new “Denied” stamp.
A second way that FY2018 stands out is that Immigration Courts adjudicated more asylum cases than any prior year: 42,224. This figure represents significantly more decisions than FY2017 (30,253) or FY2016 (22,318). Indeed, this is the most asylum cases decided in any one year since at least 1986 (I could not find data older than that).
Despite the higher denial rates, there is a silver lining to the news from FY2018: In absolute terms, more asylum cases were granted in that year (14,200) than in any previous year (in FY2017, courts granted 11,591 cases, and in FY2016, they granted 9,714 cases). Of course, the only reason so many cases were granted is because courts are adjudicating record numbers of cases overall. But these days, we takes our good news where we gets it.
These figures raise an obvious question: Why are denial rates so high?
One factor that is (probably) not to blame is the availability of help from lawyers. For the first time since FY2013, representation rates are going up. When people are represented, they are statistically more likely to win their cases. For example, in FY2016, asylum seekers without lawyers were denied 90% of the time; those with lawyers were denied only 48% of the time. While I think this disparity exaggerates the benefit of lawyers (because people with weak cases are often less likely to have representation), it is still pretty clear that having an attorney increases the likelihood of a successful outcome. Given that more people are represented these days, the increased asylum denial rate is likely not caused by an absence of legal council.
A second reason that I suspect is not to blame are the new Immigration Judges hired since the Trump Administration came into office. Since January 2017, the Executive Office for Immigration Review has significantly expanded the number of IJs nationwide. Most likely, this accounts for the increased number of decisions, but we don’t yet have data on the “Trump” judges’ denial rates. My guess is that the statistics for these new IJs will not differ very much from their more senior colleagues. I could be wrong here, but at least in my experience, the new judges do not seem any tougher than the judges that we have been dealing with for years. Perhaps as they gather more data, TRAC will issue a report about this (and maybe I will be proved wrong – I will be curious to know the answer).
One likely candidate for the increased denial rate is the case Matter of A-B-, 27 I&N Dec. 316 (AG 2018), which was issued by then-Attorney General Jeff Sessions this past June. The decision made asylum more difficult for people fearing harm from non-state actors, in general, and for victims of domestic violence, in particular. After Matter of A-B- was issued, there was a corresponding uptick in asylum denial rates. Even before Matter of A-B-, however, asylum denial rates had increased since the end of the Obama Administration (and indeed, they have been increasing since 2012). This increase might reflect less significant developments in immigration case law, as well as the cultural shift that I imagine accompanies any new Administration (and especially an Administration so openly hostile to non-Americans).
When considering asylum denial rates, one important point about A-B- is that the case is limited in scope. Certain aliens–especially people fleeing domestic and gang violence in Central America and Mexico–will be disproportionately affected, but others will not be affected. Given that a large percentage of asylum cases involve Central Americans and Mexicans, a case like A-B- has a visible impact on overall denial rates, even though the impact of the decision is limited to certain types of cases. This means that while changes in the law have affected the denial rate, that effect is an “average,” and how a particular case is impacted depends on the facts of that case.
Another contributing factor to the higher denial rate may be that more long-term residents are coming into Immigration Court. This happens because the government is aggressively pursuing aliens without lawful status. It also happens because the Asylum Offices are identifying people who have been in the U.S. for more than 10 years, and trying to refer them to court.
Aliens who have been present in the United States for more than one year are often ineligible for asylum due to the one-year filing bar. There are exceptions to this rule, but it is generally more difficult for such people to win their asylum cases. Many people in this position file asylum as a last-ditch effort to remain in the United States. My guess is that as these long-term residents start to receive decisions, many will be denied, and this will contribute to the overall increased denial rate.
We’ll have to see whether the current trend continues. These days, government officials are looking for ways to make asylum more difficult, but they are limited by the law, and so it’s not clear how much higher the denial rate can go. When thinking about denial rates, it is important to remember that certain cases–Matter of A-B- cases, one-year bar cases–are probably driving the increase in denial rates. Other cases are less affected. Either way, the environment these days is not easy for any asylum seeker, and so it is more important than ever to gather evidence and present the strongest case possible.
A recent article in the Washington Post discusses the case of Santos Chirino, a Honduran man who sought asylum in the United States after gang members threatened him for testifying against one of their own. Immigration Judge Thomas Snow found that Mr. Chirino did not qualify for asylum or other relief, and ordered him deported. Eight months after he returned home, Mr. Chirino was shot dead at a soccer match.
Mr. Chirino’s is a sad and sympathetic case. But the fact is, his story tells us nothing about whether Judge Snow made the wrong decision. In fact, our asylum system is designed so that a certain percentage of those properly ordered deported will be harmed or killed in their home countries. Let me explain.
To win asylum, an applicant must demonstrate that he faces at least a 10% chance of “persecution” (serious harm or death) in the home country (this statement is a simplification, but for our purposes, it works just fine). Mathematically speaking, applicants who demonstrate a 9% chance of harm should be deported. If 100 such individuals are deported, we would expect nine of them to be persecuted upon their return.
Predicting is difficult; especially when it’s about the future.
As a conservative and cautious person, I do not like these odds. If you tell me that my airplane has a 9% of crashing, there’s no way in hell I’m getting on board. I’ll take the bus, thank you very much.
The situation is even more grim for people–such as Mr. Chirino–who do not qualify for asylum, but who still fear harm. Some people are ineligible for asylum because they committed crimes; others, like Mr. Chirino, are barred because they failed to file within one year of arriving in the U.S. and failed to meet an exception to that rule; still others are blocked because the harm they face is not “on account of” a protected ground (race, religion, nationality, particular social group or political opinion). Such people can apply for other, lesser, forms of relief: Withholding of Removal and relief under the United Nations Convention Against Torture (“CAT”). But to qualify for protection under these laws, an applicant must demonstrate that she will “more likely than not” suffer persecution or torture in the home country. In other words, that the likelihood of harm is greater than 50%.
This means that under our system, applicants for Withholding or CAT who demonstrate a 49% chance of being persecuted or tortured should properly be deported. Again, if 100 such people are deported, we can expect 49 of them to be harmed. This is not very comforting for asylum applicants or their families, or for people like Judge Snow who work in the system and are tasked with enforcing the law.
There’s another side to this coin, however. That’s the case where the adjudicator grants relief, and then the person commits a bad act inside the United States. Fortunately, such cases are rare, and it has been pretty-well demonstrated that immigration to the United States has a neutral or positive effect on crime rates (this makes sense given the strict vetting process for immigrants). But there are glaring exceptions, and these tend to get significant attention. One recent case involved a Salvadoran teen accused by DHS of membership in MS-13. Last summer, an Immigration Judge found the evidence against him insufficient and ordered him released from custody. A month later, he helped commit a brutal murder. Once again, the Immigration Judge may have made the “right” decision, but the end result was tragic.
So in a sense, Immigration Judges are caught between the Charybdis of granting relief and the Scylla of denying. But to me, that is not really their problem. We live in an imperfect world, and we have an imperfect asylum system. Judges operate within that system and hopefully follow the law to the best of their ability. If a particular asylum seeker has demonstrated a 9% chance of harm, the judge should deport that person. That is the law, and if we don’t like the law, we should try to change it.
In Mr. Chirino’s case, the tragedy is compounded by the fact that his denial was likely a result of failing to meet the nonsensical one-year filing deadline. Had he filed on time, or met an exception to the one-year bar, his case would have been evaluated under an easier standard, and he might have been granted relief. Again, this is a problem with the law, not the judge, and it is up to us to change laws that we do not like.
Several years ago, I was speaking with Judge Snow, who I consider one of the best and most thoughtful judges I know. I was thinking about applying to be an Immigration Judge, and I asked him how he handles hard cases, those where his sympathies lie with the applicant, but where relief was legally unavailable. He told me that in such cases, he does his best to follow the law, even when it is difficult. That is a judge’s duty, and I have little doubt that that is what Judge Snow did in the case of Santos Chirino.
I suppose all this goes to show that what works for “the system” does not necessarily work for the individual. One could argue that Mr. Chirino was an innocent martyr of our asylum system. He and many others have died or been persecuted so that our humanitarian immigration system might exist. It is important for all of us to be aware of these sacrifices, and to work towards a more perfect and just system.
A poet once said, “It’s not how you feel; it’s how you look. And you look mah-velous!”
What does this gentle wisdom have to do with asylum cases? Simply this: Whether you have a strong case or a weak case, if you present your case in an organized and neat fashion (i.e., if you make it look marvelous), you are more likely to be granted relief.
How do I know this is true? I really don’t. I just made it up. But it seems true. Plus, I have talked to Asylum Officers and Immigration Judges, and I know they sometimes become frustrated with disorganized applications. Also, it makes sense–if you make the decider’s job easier, you are more apt to get a good decision. So how should an asylum application look?
Yours truly, several years before being voted “Best Looking Asylum Lawyer in Washington, DC.”
The first thing to know is that there are different rules for the Asylum Office and the Immigration Court. The Asylum Office rules are more lenient. When we prepare evidence for the Asylum Office, we basically follow the Immigration Court rules. In this way, we are prepared in the event that the case goes to Court. Also, the Court rules provide good guidance for how to organize a packet of documents.
First, let’s talk about Asylum Office cases. For such cases, we include a cover letter. This letter is short, and simply explains what type of application we are filing. If there are any issues of particular note, we might mention those in the cover letter–for example a one year bar issue, a criminal conviction or a prior asylum application.
Next, we include the packet of documents. We do not send any original documents; we submit copies (we have the client bring any originals to the interview). We also keep a copy of the entire packet for ourselves. Per Asylum Office rules, we submit two copies of the entire packet of documents. Each page of the packet is numbered. I put the numbers in the bottom center of each piece of paper. Also, each individual exhibit is labeled with a letter (Exhibit A, Exhibit B, etc.). In front of each exhibit is a separate page with a tab (A, B, C, etc.). If the packet of exhibits is tabbed and paginated, it is easy for the officer to find what she needs.
On top of the packet of exhibits, we include an index. The index lists each exhibit by letter and page number. I also include a brief description of each exhibit, so that the officer can read my summary, rather than a (sometimes) lengthy document. An abridged example of how we do the index is here: Example Index
The exhibits we typically submit, aside from the original I-589 form, include copies of: All passports, the applicant’s affidavit, birth certificate, marriage certificate(s), divorce documents, national ID cards, identity documents for spouse and children (passports, birth certificates, national ID cards), education documents (diplomas, transcripts, awards), employment documents, any criminal or arrest documents (from the U.S. or overseas), police reports, medical reports (including forensics reports about scars or psychological trauma), membership documents for political, religious or other organizations, letters from witnesses, threat letters or evidence of threats, relevant photos (of political activities, injuries, etc.), relevant news articles, and country and human rights reports. Any documents not in English need to betranslated with a certificate of translation. Of course,the documents we submit vary, depending on the case and what we need to prove. But the format is always the same.
Also, it is a good idea to submit the exhibits on time. These days, underLIFO, we usually complete the entire case and submit everything together with the I-589 application (since we often-times receive a quick interview date). However, if you are submitting documents after the case has already been filed, make sure your Alien number is on the cover page and the index, and make sure everything is submitted on time. Some asylum offices want your exhibits at least one week prior to the interview. You can contact the local asylum office to ask about the filing rules.
If you have a case in Immigration Court, the rules are more strict. First of all, you need to submit one copy of everything to the Court and one copy to the DHS Office of the Chief Counsel (the prosecutor). Second, you need to follow the rules related format, which you can find in theImmigration Court Practice Manual (follow the link called “OCIJ Practice Manuel;” chapter 3 and appendices F and G are particularly useful for format). Also, you need to submit a witness list (check chapter 3 of the Practice Manuel, page 57-58). The list of exhibits will look similar to what I described above for the Asylum Office index. For non-lawyers, this is all a bit much, and for this reason, if you have a case before the Immigration Court, you would do well to find an attorney to assist you (if you cannot afford a lawyer, you might be able tofind one for free).
One last tip: If possible, submit all documents by hand (and bring your copy of the exhibits so the Asylum Office or Court can stamp it with a proof of service) or by certified mail. It is common for evidence to get lost, and so it is a good idea to have proof that you submitted the evidence.
Whether your case is before the Asylum Office or the Immigration Court, it will benefit you to submit a neat, well-organized packet of evidence. And by the way, darling, you look mah-velous!
My colleague Ruth Dickey recently accompanied one of our clients to an interview with the ICE Counter-Terrorism Unit, after the client was ordered to report for questioning. She writes about her experience here:
ICE has been in the news lately for its role in apprehending migrants, detaining parents, and increasing deportations. For the public, the agency has become synonymous with the current administration’s aggressive approach to enforcement. Rightly or wrongly, ICE agents are portrayed as a boogeymen, and the #AbolishICE hashtag continues to trend ever upwards.
Ruth Dickey, immigration attorney extraordinaire.
What many people do not know is that ICE has two divisions that work with the public: Enforcement and Removal Operations (“ERO”), which is responsible for most of those gut-wrenching daily headlines, and Homeland Security Investigations (“HSI”). HSI is usually seen as a “good guy” agency. Agents track down terrorists and pedophiles, counter human trafficking, and help interdict illegal drugs. They do important work that protects us from transnational criminal organizations and other bad actors. When ICE issues a press release about a success story, it’s usually for something that HSI has done. The fact is, HSI’s work is generally more brag-worthy than anything ERO is doing.
HSI, it turns out, seems a bit embarrassed to be associated with the notorious ERO. Indeed, a group of HSI Special Agents recently published an open letter to DHS Secretary Kirstjen Nielsen requesting to break off from the rest of ICE. In the letter, the agents explain that,
HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security. Furthermore, the perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement.
The agents complain that cities and towns are unwilling to partner with HSI unless they hide the agency’s connection with ICE. It seems that HSI is eager to maintain the image of a law enforcement agency that helps, not hurts. Its association with ICE makes HSI less effective because localities are reluctant to work with HSI agents.
Give this background, we were surprised recently when one of our clients was contacted by HSI’s National Security Group-Counterterrorism and Criminal Exploitation Unit. Our client had come to the United States for an education program. He had been thoroughly vetted prior to arrival, and was bright and ambitious enough to merit a scholarship funded by the U.S. Department of State.
While he was in the U.S., our client was outed as a gay man and he received several death threats from back home. All this took place shortly before his student status ended, and he hired us to file for asylum. His case was filed a few weeks after his classes finished (meaning that he had just fallen out of status). By the time HSI contacted him, our client’s asylum application was already pending, and he had received his receipt.
Our client is law abiding, and doesn’t have so much as a speeding ticket, so it was strange that HSI would have an interest in him, much less the counterterrorism unit.
I attended our client’s HSI interview in a drab office building near the airport. I went there not knowing what to expect. The agents obtained basic biographic information and took out client’s fingerprints. Then the agents told us that they were arresting the client, releasing him, and issuing him a notice to appear in Immigration Court (an NTA). In the ensuing discussion, the agents told us:
That the Immigration Court would decide our client’s case more quickly than the Asylum Office (apparently, the agents weren’t familiar with the LIFO policy, which went into effect in January).
That sending the case to court was not a waste of resources, since the case might have been referred to court anyway (that is, the agents inappropriately speculated about the merits of the case, even though they seemed to know nothing about it).
That our client would be required to attend regular check-ins at ERO to prove he was not a flight risk (despite his strong asylum claim, which he filed voluntarily).
Our client had to surrender his passport, and the agents would not give him a receipt or a certified copy of the document. Thus, he had no evidence that his passport was in HSI’s possession (inappropriate and incredibly inconvenient, given that the passport was his only form of ID).
That I (the lawyer) should not question the agents’ actions, since their children receive death threats (you would think that these alleged threats might generate some empathy for asylum seekers, but I digress).
Technically, the agents are correct that they have the power to send our client to court since he was already out-of-status. But here, I want to focus on why this approach is inefficient and inhumane.
First, our client already had a pending affirmative asylum application with USCIS at the time of his “arrest.” Such cases are less stressful on the applicant, as they consist of a (theoretically) non-confrontational interview. Contrast this with the adversarial hearing in Immigration Court. Also, under the new LIFO system, most new affirmative asylum cases (like our client’s) will be decided much more quickly than the average asylum case in Court. Further, Asylum Office cases are cheaper for the applicant in terms of lawyer’s fees, since such cases require less attorney time than Court cases.
Second, from the government’s perspective, affirmative asylum cases are less expensive and more efficient than Immigration Court cases. For one thing, the Asylum Office is funded by USCIS user fees (meaning, when you pay a USCIS fee, some of the money goes to the cost of running our affirmative asylum system). Immigration Court cases, on the other hand, are paid for by taxpayers. Court cases also involve more people: The Immigration Judge, the court-appointed interpreter, the Court staff, the DHS attorney, and—in my client’s case—ICE agents. Asylum Office cases involve fewer people, and so are less expensive. Indeed, the raison d’etre for the Asylum Offices is to reduce the burden on Immigration Courts by resolving asylum cases before they land in proceedings.
Third, one main purpose of the Immigration Court is to deport people who have no legal right to be in the United States. This includes people convicted of crimes and people who pose a threat to national security. The more the court system is clogged with cases like our client’s, the less able it will be to deal with people who may be a danger to our country.
So here is my advice for HSI: If you don’t want to be “perceived as targeting undocumented aliens,” then maybe you should try not targeting undocumented aliens, like my client. HSI should consider efficiency and humanity before tossing affirmative asylum applicants into the Immigration Court system merely because they are out of status. If they want to do the right thing, HSI can start by revoking our client’s NTA and allowing the Asylum Office to adjudicate his case.
I’ve never been a big fan of the Martin Niemöller poem about the Nazi era, “First they came…” You know the one:
First they came for the Socialists, and I did not speak out – Because I was not a Socialist,
Then they came for the Jews, and I did not speak out – Because I was not a Jew,
…yadda, yadda, yadda…
Then they came for me – And there was no one left to speak for me.
I have two complaints about this poem. First, it implies that the main reason to “speak out” on behalf of others is self-interest: If I don’t help others, no one will help me. That seems a weak foundation for a system of moral behavior. Second, I don’t think Pastor Niemöller’s basic point—that eventually a malicious government will come for everyone—is convincing to the people who need convincing. Nazi supporters certainly did not think that their government would turn against them. And the fact is, Hitler did not persecute most of the people who stood by his side (he caused them great misery, but that is another story).
Due Process of Law…
Fast forward to our own time, and President Trump’s attacks on non-citizens. Last month, the President announced his opposition to due process of law for asylum seekers: “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” he wrote on Twitter. And a series of new legal, policy, and personnel changes represent clear moves in the direction of weakening due process protections for non-citizens, and making it easier to deny cases—including asylum cases—without a full review of the applicant’s claim.
Why should we be so concerned about due process, you ask? For one thing, due process is a foundational principle of our democracy (and its origins go all the way back to the Magna Charta). The Founding Fathers were rightly concerned about the exercise of government power against individuals. Due process provides a procedural check on that power—the government’s authority cannot be unleashed in a criminal, civil or immigration case without first ensuring that the use of that power is lawful. In the case of non-citizens, the Immigration and Nationality Act (“INA”) provides certain legal rights to non-citizens, including the right to apply for asylum. The Supreme Court has recognized—repeatedly—that aliens are entitled to due process of law before they can be deported.
What does due process look like in the immigration context? The protections afforded to non-citizens vary, depending on many factors, including the type of case, the relief sought, and whether the alien is inside the U.S. or seeking admission at the border. In the asylum context, an alien who is physically present in the United States or at a border has the right to seek asylum. That is the law (specifically INA §208). In most cases, asylum seekers are entitled to a full hearing to evaluate their claims. However, the Trump Administration has been working hard to eliminate due process protections, and reduce the system’s safeguards (for a sobering analysis of the Trump Administration’s degradation of due process for non-citizens, check out this article by the brilliant Jeffrey S. Chase). But thus far, the Trump Administration has not changed the immigration law—that requires an act of Congress.
Assuming that Congress does not act (usually a safe assumption), some measure of due process will remain for all asylum seekers—even those at the border. But of course, reducing due process means increasing the likelihood that legitimate claims will be denied, and that some aliens will be returned to face harm.
Dupe Process of Law.
All this brings us back to Pastor Neimöller. I have little hope that President Trump’s supporters or Republicans in Congress will have a sudden change of heart, or recognize that when due process protections are reduced for some, those protections are reduced for us all. They seem to believe that while the government might come for non-citizens, it will not come for them. Or in the case of our elected officials, they may know better, but are cowed by the President’s Twitter account. Either way, we can’t expect much help here.
So where does that leave us? Who will speak out?
The primary decision-makers in asylum cases—the people on the front line—are Immigration Judges and Asylum Officers. There are other players, of course: The federal courts, the Board of Immigration Appeals, and USCIS Officers, but in most cases, it will be the IJs and Asylum Officers who determine the applicant’s fate. Here, I do have hope. Despite seeming efforts (probably illegal) by the Justice Department to exclude politically undesirable candidates, most IJs and Asylum Officers are serious people who recognize their duty to the rule of law. They were not hired to rubber stamp the President’s agenda, and most will not do so.
And while I can’t say I am a fan of Pastor Neimöller’s famous quote, I do think he is correct in this sense: When we weaken the legal mechanisms and institutions that protect us from excessive government power, we all become more vulnerable. Perhaps non-citizens are the canaries in the coal mine. As the government seeks to reduce due process protections for them, we should all be concerned. Immigration Judges and Asylum Officers stand on the front line of this fight, and when they do their duty, they protect us all.
If the asylum seeker’s affidavit is the heart of her application, evidence might be considered the lungs: It provides the oxygen that allows the heart to function. Or maybe anatomical analogies are just weird. The point is, evidence in support of an asylum application is crucial to the application’s success. But what is evidence? And what happens if you can’t get it?
An asylum attorney prepares to file evidence in his case.
The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
See INA 208(b)(1)(B) (emphasis added). In other words, if you claim that something happened (you were unlawfully detained), you are required to provide evidence about it (a police document), and if you are unable to provide such evidence, you should be prepared to explain why you could not get the evidence (maybe the police in your country don’t issue receipts for illegally arresting people).
What this means is that you should try to get evidence supporting your case. Different lawyers may have different views on this, but I think you should get evidence for every claim you make in your affidavit and I-589. That includes evidence not directly related to the asylum claims, such as evidence of education, employment, awards and certificates, membership in organizations and religious institutions, travel to third countries, documents used to obtain your U.S. visa(s), birth certificates for you and your immediate family members, all passports for you and your immediate family members, marriage and divorce documents, national ID cards, military service records, arrest records, and general medical records. In other words, evidence about who you are and what you’ve been doing with your life.
Of course, you also need to get evidence related to your asylum claim. So if you were arrested, harmed or threatened, get evidence about what happened: Police and court documents, medical records and photos of injuries/scars, copies of any threats. If your case involves political activity in your country or elsewhere (including the U.S.), get party membership cards, receipts, letters from the party, and photos at political events. If it is a religious case, get evidence of your religion: Letters from church leaders and/or members, photos at religious events, certificates, membership documents, and government IDs, which sometimes list religion. If the case is based on nationality, ethnicity or race, get evidence that you belong to the group in question, such as identity documents.
For people claiming asylum based on membership in a particular social group (“PSG”), the evidence needed depends on the group. For LGBT cases, get evidence of sexual orientation, such as membership in gay rights groups and evidence of past relationships. If your PSG involves family members, get evidence of familial relationships–birth and marriage certificates, photos, and other family documents, including evidence that other members of your family were harmed or threatened. If you have a domestic violence case, get evidence of the relationship (marriage certificate, birth certificates of children, photos together, other documentation that you were in a relationship) and of the harm.
If there are newspaper or magazine articles, country reports or human rights reports–or even blog posts or Facebook posts–that support your asylum claim, include those. If you are using a newspaper or magazine, make sure to include the cover page of the newspaper, and the entire article. If you are using an on-line resource, make sure to include the website address.
You should also get letters from family members, friends, and colleagues who can attest to your problems (I’ve posted about how to write a good letter here). In many cases, it is impossible to get direct evidence of harm, and so letters from people attesting to your problems is all that you can get. While letters from family members and friends are not as valuable as more direct evidence, they are still valuable, and we always include such letters if we can get them.
Some people have scars or other evidence of physical harm (including FGM). In such cases, you should get a forensic medical report to help bolster your claim about how you received the scar (in other words, that the scar was caused by torture as opposed to a car accident or disease). Of course, the doctors who write such reports do not know for sure how you received a particular scar. But they can state that the scar is consistent with your explanation of how it was received. If you cannot afford a forensic exam (or find a doctor to do the exam pro bono), at least take photos of the scars and include them with your evidence. Normally, we have our clients take a close-up of the scar and also a photo from further away, so we can see the person’s face (so we know the scar is on that particular person’s body).
We also sometimes submit other types of expert reports. The most common are psychological reports (that indicate PTSD, for example). In my opinion, the most effective reports are the ones created in the course of treatment. The less effective reports are created after one or two meetings with the asylum seeker, and were clearly created for purposes of the asylum case. Sometimes, we also use expert reports related to country conditions, though these days, we can usually find what we need on the internet.
If any of your close family members applied for or received asylum, refugee or other humanitarian status (including SIV status) in the U.S. or abroad, try to get evidence of that status. In general, it is very helpful to show that other family members, who are often similarly situated, have been persecuted or have already received asylum. Indeed, we recently did a case in Texas where our client’s close family members all had SIV status (meaning that the U.S. government determined those family members faced a threat in the home country due to their cooperation with the U.S.). This evidence alone was enough to convince the Judge to grant asylum to our client.
You should also submit country condition information. Some lawyers submits lots of country condition information. I am not one of those lawyers. I think that redundant reports are counterproductive and distracting. It is standard procedure to submit the U.S. State Department Report on Human Rights Practices (or at least an excerpt of the relevant portions). Also, if applicable, we submit the State Department Report on International Religious Freedom. If those reports are not sufficient, we submits reports from other credible organizations, like Human Rights Watch or Amnesty International. There are also lots of issue-specific reports from groups like the Committee to Protect Journalists, Doctors Without Borders, and International Christian Concern, to name a few. If there are news articles from credible sources, we submit those too (if they are relevant and not redundant). Finally, if there are specific articles or reports from less-reliable sources that speak directly to the issues in the case, we submit those as well.
Finally, it is important to review all the evidence to ensure that it is consistent with your statement and with the other evidence submitted (for example, if your statement says that you lived in a red house, your witness letters should not say that you lived in a blue house). Inconsistent evidence can lead to a determination that you are not credible, so be careful about this.
The evidence for each applicant is case specific. If you have an attorney, one of the attorney’s jobs is to evaluate your case and determine what evidence is helpful. If you do not have an attorney, you should still do your best to obtain as much evidence as possible. This will help increase your chances for a successful outcome.
Let’s say it’s your goal to deport as many people as you can get your hands on. You believe that most asylum seekers are fraudsters and you hope to make America great again by cutting programs like TPS and DACA in order to remove as many foreigners as possible. In other words, let’s say you are a member of the Trump Administration. In that case, will case completion quotas in Immigration Court help you achieve your goal?
Maybe if IJs were less lazy, they would complete more cases.
Superficially, it seems that they might. If Immigration Judges (“IJs”) are required to complete more cases, it makes sense that more people will be deported. Presumably with that goal in mind, the Executive Office for Immigration Review (“EOIR”)–the office that oversees the nation’s Immigration Courts–has recently created performance metrics to evaluate IJs based, in part, on the number of cases completed.
In order to achieve a “satisfactory” level of performance, IJs must now complete at least 700 cases per year, with less than a 15% remand rate (the “remand rate” is the percentage of decisions overturned by a higher court). IJs who complete between 560 and 700 cases “need improvement,” and IJs who complete less than 560 cases per year are deemed “unsatisfactory.”
For what it’s worth (a lot, in my opinion), the National Association of Immigration Judges (the IJs’ union) opposes the new plan because they fear quotas will infringe on the IJs’ independence. For its part, EOIR contends that using metrics to evaluate performance is “neither novel nor unique” and that it will “encourage efficient and effective case management while preserving immigration judge discretion and due process.”
I recently had the opportunity to speak to an IJ and a few court personnel about the new quotas, and they seemed nonplussed. In Baltimore, for example, I’m told that IJs with “regular” (as opposed to juvenile) dockets already complete well over 700 cases per year. The one IJ I spoke to said he completed 1,100 cases last year. Those number are well above average, according to the statistics I could find.
Five months into FY 2018, the nation’s IJs completed a total of 83,643 cases. Divide that by 330 judges, and you get an average completion rate for the U.S. of about 51 cases per month, or about 608 cases per year. Based on the statistics for Baltimore and my calculations (which are always suspect), the average IJ in that court will complete 855 cases this year. So why are Baltimore IJs so much more efficient than the national average?
As usual, I do not know. But looking at the case completion rates for other courts perhaps gives us a clue. In Miami-Krome, a detention center, the completion rate is about 739 cases per year per IJ. I would have expected a higher completion rate in a detention facility, as detained cases tend to move faster than non-detained (indeed, if you see a detained case file at EOIR, it will be labeled with a bold sign indicating “Rush–Detained at Government Expense”). Other detention facilities have even lower case completion rates: Eloy, AZ completes 658 cases per IJ per year, Harlingen, TX completes 516, and Elizabeth, NJ completes 457.
I suspect what’s going on with these variable rates has more to do with cases being venued to other courts than with IJ efficiency. In other words, many aliens in detention facilities are there because they were detained while trying to enter the U.S. Some percentage of these people are released, and then move to another part of the United States, where they pursue their cases. Thus, IJs near the border and at certain detention facilities (near airports or the border) tend to complete fewer cases because their cases are transferred to other courts. In my Baltimore example, there is no major detention facility nearby, and most people do not transfer their cases elsewhere. Hence, IJs in Baltimore tend to complete the cases that come before them.
The completion rate at other courts is more of a mystery. New York completes 540 cases per IJ per year, for example. LA completes only 477 cases per year (LA is near the border, so maybe some aliens are moving their cases to other jurisdictions).
In short, without better data, it is difficult to know what is going on. One thing does seem clear though: Grant rates vary significantly by court. Thus, for some IJs, the new quotas will be a non-issue. They already complete more than enough cases to earn the distinguished title of “satisfactory.” For other IJs, completing 700 cases, or even 560 cases, might be impossible. If so, the new quotas may force those judges to circumvent due process in order to fulfill EOIR’s mandate.
The new quotas raises other questions as well. The biggest one for me involves the anticipated influx of TPS and DACA recipients whose status has been terminated. It’s widely believed (including by yours truly) that many of these people will file for asylum rather than depart the United States. In an effort (probably futile) to dissuade such people from seeking asylum, USCIS has already re-ordered how cases will be processed, so that newly-filed cases will be interviewed first. If those cases are denied, they will be sent to court, where–according to one official I spoke to–they are supposed to be heard on an expedited basis. But how can that happen unless the court dockets are re-ordered? This “aimless docket reshuffling” (a termed coined by the inimitable Judge Schmidt) will pretty clearly interfere with the IJs’ ability to meet EOIR’s quotas.
So in the end, it seems that the new quotas will have no affect on some IJs, and dramatic affects on others. Whether overall completion rates will be improved, I have my doubts, especially if dockets are reshuffled to accommodate an influx of TPS and DACA recipients. I also have doubts about whether IJs who are forced to drastically increase their completion rates will be able to continue making decisions in accordance with due process of law. Sadly, the Trump Administration seems far more concerned about quantity than quality, and I fear that asylum applicants, immigrants, and our nation’s IJs will all suffer because of it.
This is part 2 of a posting about what happens if the Asylum Office denies your affirmative application. Read part 1 here.
The view from the Judge’s seat in Immigration Court.
If the Asylum Office denies your asylum case and you are no longer “in status,” you will be referred to an Immigration Court. When you get the denial (which they politely call a Referral), it will contain a short letter with a (usually) boilerplate explanation about why the case was not granted. Along with the letter, you will receive a Notice to Appear (“NTA”), which explains why the U.S. government believes it can deport you. If you have dependent family members, each of them should also receive an NTA (assuming they are all out of status).
The NTA contains allegations and charges. The allegations usually begin, “(1) You are not a citizen or national of the United States; (2) You are a citizen and national of [your country]; (3) You entered the United States on [date and place],” and then they state why you are removable. Often, the alien is removable because she remained in the United States longer than permitted. Other times, the alien entered the U.S. unlawfully (without inspection) or fraudulently (using a fake passport, for example). Some people are removable due to criminal convictions or other immigration violations. Read the NTA and make sure all of the allegations are correct.
The NTA also contains one or more charges. The charges indicate the section of the law (the Immigration and Nationality Act or INA) that the government can use to deport you. One common charge is under INA § 237(a)(1)(B), where the person is removable for having “remained in the United States for a time longer then permitted.” Other charges could relate to an unlawful or fraudulent entry, or to a criminal conviction.
Finally, the NTA will tell you where to go to Immigration Court. Usually, these days, the NTA does not tell you when to go to court. Instead, it says, “TBD,” which means “To Be Determined.” If your court date is TBD, you will receive a notice in the mail with the date of your first hearing. It is important to keep your address updated with the Immigration Court. Use form EOIR-33, and don’t forget to send an extra copy to the DHS Office of the Chief Counsel (the prosecutor).
Also, you can call the Court phone system to check the status of your case and learn whether you have an upcoming hearing. The phone number is 800-898-7180. It is a computer; not a person. Once it answers, follow the instructions and enter your Alien number. After the computer spells your name and you confirm, you can push 1 for your next court date. I recommend you call once a week, just in case you don’t receive the written notice (if you miss your court date, the judge will likely order you deported).
The wait time for the first court date depends on the court and the judge—it could take a few weeks or a few months (or sometimes longer).
Once you are scheduled for court, you will be assigned a judge. The 800-number will tell you the name of your judge. You can learn more about your judge at TRAC Immigration (information is not available for newer judges).
The first hearing is called a Master Calendar Hearing (“MCH”). Many people attend that hearing, and you have to wait your turn. When it is your turn, if you have a lawyer, the Immigration Judge (“IJ”) will take “pleadings.” This is when you (through your attorney) admit or deny the allegations and charges in the NTA. After that, the IJ will usually schedule you for an Individual Hearing (also called a Merits Hearing).
If you do not have an attorney with you at the MCH, the IJ will usually give you a continuance to find an attorney. If that happens, you will be scheduled for another MCH. In generally, the IJs really want you to find a lawyer, as it makes their job easier and it significantly increases the likelihood that your case will be approved.
For most referred asylum applicants, the NTA is correct and the person will admit the allegations, concede the charges of removability, and request asylum, Withholding of Removal, and relief under the United Nations Convention Against Torture. However, in some cases, the NTA is not correct. Also, some applicants can seek other relief, such as Cancellation of Removal or adjustment of status based on a familial relationship (or something else). One job of the attorney is to explore what types of relief you might be eligible for.
Also, at the MCH, the IJ will ask you to designate a country of removal. In other words, the IJ wants to know where to send you if you lose your case. For most asylum applicants, we decline to designate a country of removal. The DHS attorney (the prosecutor) will usually designate the country of citizenship.
If you admit the allegations, concede the charge(s), and indicate what relief you are seeking, the IJ will usually schedule you for an Individual Hearing, which is your trial. If you decline to accept the first Individual Hearing date the IJ offers you, or if you take a continuance to find a lawyer, it could prevent you from obtaining a work permit (if you don’t already have one—if you already have a work permit, you do not need to worry about this). If you think this could be a problem in your case, ask your lawyer. If you do not have a lawyer, ask the IJ.
The wait time between the MCH and the Individual Hearing varies by court and by judge. It might be a few days or weeks (for a detained alien), or it could be several years. Supposedly, for asylum cases referred to Court under the new last-in, first-out system, IJs will be scheduling quick Individual Hearing dates. We’ll have to wait and see how that works out.
The Individual Hearing is your trial. It is where you present evidence, and where you and your witnesses testify. At the end of the Individual Hearing, the IJ will usually make a decision—give you asylum, give you some other type of relief, or order you deported. Sometimes, a case requires more than one Individual Hearing. Other times, the IJ will send the decision by mail.
If lose your Individual Hearing, you can appeal to the Board of Immigration Appeals (“BIA”). If you win your asylum case, DHS can appeal (thankfully, that is not so common). You do not appear in-person for the appeal. Instead, you (or hopefully, your lawyer) will submit a brief, and the BIA will read it and make a decision in your case. Either the BIA will dismiss the appeal, meaning the IJ’s decision was correct and will remain in force, or it can alter or reverse the IJ’s decision. In the latter instance, the case will normally be returned to the IJ to correct the error, and issue a new decision.
An appeal with the BIA typically takes about six months or a year, but it depends on the case.
If you lose at the BIA, you can file a Petition for Review with the appropriate federal appellate court, and if you lose there, you can try to go to the U.S. Supreme Court. Very, very few cases make it that far. Also, if you lose at the BIA, whether or not you go to federal court, you are no longer eligible for a work permit based on a pending asylum case, and you can be deported (typically, ICE will not deport someone with a pending federal case, but they have the legal authority to do so unless the federal court issues an order “staying” removal). For the vast majority of aliens, if you lose at the federal appellate level, that is the end of the line.
In my experience, it is a bit easier to win an asylum case in Immigration Court as compared to the Asylum Office. But it is much more difficult to win at the BIA, and even more difficult to win at the federal appellate level.
So this is the basic process that most cases follow if they are denied at the Asylum Office. There are some exceptions and different paths (most notably Motions to Reopen and/or Reconsider), but the majority of applicants will follow this process. If your case is rejected by the Asylum Office, it becomes even more important to have a lawyer assist you. If you can’t afford a lawyer, check this posting for some helpful resources. And remember, losing at the Asylum Office is frustrating and upsetting, but it is by no means the end of the road. Keep fighting, and hopefully, you will have a good result in the end.
