Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President’s executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order (“EO”). The new EO was also severely limited by the courts.
You’d think a bunch of people in burkas would be a bit more sympathetic to Muslims.
But now, the Supreme Court has spoken, and the EO is back, at least in part. So what’s the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC–they are a terrific organization that does yeoman’s work in all areas of the immigration field):
“[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have ‘a credible claim of a bona fide relationship with a person or entity in the United States.’
“What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a ‘close familial relationship’ with someone already here or if they have a ‘formal, documented’ relationship with an American entity formed ‘in the ordinary course’ of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.
“Who is likely to be allowed to enter the United States?
Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who ‘wish [] to enter the United States to live with or visit a family member’ have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically–I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.
“Who may have trouble entering the United States?
Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically–it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment].”
As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation–how the Department of Homeland Security (“DHS”) interprets and applies the Supreme Court decision in actual, real-life cases.
In that regard, I agree with Justice Thomas, who “fear[s] that the Court’s remedy will prove unworkable” and will invite a “flood of litigation.” Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?
In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court’s decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that’s not a great situation to be in.
Finally, yesterday’s decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court’s decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).
All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.
One of my professional goals in life is to get a published decision from the Board of Immigration Appeals (“BIA”). It won’t be easy–the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation’s Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.
I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.
Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are “persuasive,” meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.
My case centered on a legal construct called “firm resettlement.” An alien who has been “firmly resettled” in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client’s husband had been a high-ranking member of his country’s government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum–hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge (“IJ”) denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.
During the pendency of the BIA appeal, the home government assassinated my client’s husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.
On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.
DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government’s argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.
Ultimately, the BIA accepted one of several arguments we presented. The Board held:
The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.
Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).
It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.
I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.
Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.
There’s a quote attributed to legendary DC-lawyer Jake Stein that has helped define my practice as an attorney: “I’ve never litigated a case where I wasn’t better friends with my opposing counsel at the end of the case than at the beginning.”
Though it may be satisfying, beating up opposing counsel probably violates the Rules of Professional Conduct.
His philosophy may be Old School and–in these days, where being nice to someone you disagree with has become all too rare–almost radical, but I’ve taken it to heart. I try to maintain a congenial and trusting relationship with the DHS attorneys who sit across from me in court. As a result, I believe my clients are better off—and so am I.
The former President of the DC Bar, Tim Webster, touched on this issue last year in an article about the “Balkanization of Lawyers.” What he meant was that we lawyers tend to fall into opposing camps, Us versus Them, and never the twain shall meet. In Immigration World, that means attorneys who represent immigrants and asylum seekers, on the one hand, and government attorneys, on the other.
Mr. Webster laments the division of our profession in this manner, and points out that it is often bad for our clients, who benefit when lawyers are able to “work cooperatively with opposing counsel towards a consensual resolution” of their cases. Perhaps Mr. Webster’s observation is more applicable to civil cases, where a negotiated monetary settlement is the norm, but I think it also applies in Immigration Court. When we have a cooperative relationship with DHS, we are often able to reach better resolutions for our clients. DHS attorneys are more likely to give us the benefit of the doubt, and more likely to stipulate to part (or sometimes all) of a case.
Mr. Webster also argues that the idea of us-versus-them stands in opposition to our core values as attorneys. Under the Rules of Professional Conduct, we are required to be honest and fair–to the client, to other attorneys, and to the tribunal (and also to other people we encounter in the course of our work). When we view opposing counsel or Judges as “the enemy,” it becomes easier to justify behavior that risks violating our obligations under the Rules, which can harm our clients (and land us in hot water).
Unlike perhaps some areas of law, immigration law has a strong ideological component. Many of the attorneys who represent immigrants do so because they believe in human rights and they want to keep families together. For such attorneys—and I include myself among them—our work represents an expression of our moral and/or religious values. In other words, it’s more than just a job; it’s a mission.
Does this make it harder for us to work cooperatively with opposing counsel (DHS)? Is it more urgent that we do so? For me, the answer to both these questions is yes. When our clients’ lives and futures are on the line, it can be very difficult to maintain a cordial relationship with a government attorney who is fighting to have that client deported. But even in the hardest-fought case, there is value in maintaining lines of communication. For example, even where the DHS attorney will not compromise and is fighting all-out for removal, there still exists the possibility of stipulating to evidence and witnesses, and of a post-order stay of removal. Severing the connection does not serve the client (though it may satisfy the ego), and certainly won’t help future clients, and so to me, there is little value in burning bridges, even when I believe DHS’s position is unjust.
All that said, there is no doubt that we will often disagree with our opposing counsel, and that we will fight as hard as we can for our clients. This is also a duty under the Rules of Professional Conduct (zealous advocacy), and for many of us, it is an expression of our deeply held belief in Justice.
With the ascension of the Trump Administration, and its more aggressive approach towards non-citizens, I believe it is more important than ever for us lawyers to keep good relationships with our DHS counterparts. While some government attorneys are glad to be “unleashed” and to step-up deportation efforts, many others are uncomfortable with the Administration’s scorched-Earth strategy. These DHS attorneys (and I suspect they are the majority) take seriously their obligation to do justice; not simply to remove everyone that ICE can get their hands on.
While the environment has become more difficult, I plan to continue my Old School approach. It works for me, it has worked for my clients, and I think it is particularly crucial in the current atmosphere. We lawyers–the immigration bar and DHS–should continue to lead by example, and continue to maintain the high ethical standards that our profession sets for us. In this way, we can help serve as a counter-balance to our country’s leaders, whose divisive, ends-justify-the-means approach has no use for the basic principles of morality or comity that have long served our profession and our democracy.
Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.
Fred Korematsu and the Presidential Medal of Freedom.
After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).
The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”
Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:
In the long history of our country’s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.
Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.
With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.
But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.
The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.
As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983–more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”
By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”
[The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.
And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.
Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.
Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.
Learn more about Fred Korematsu and his on-going story at the Korematsu Institute.
A recent case from Florida has raised concern in the asylum-seeker community. On April 26, Marco Coello, a Venezuelan asylum seeker, went to his interview at the Miami Asylum Office. Instead of meeting with an officer to discuss his case, he was detained by Homeland Security officers.
If you see these guys at your asylum interview, it’s probably a bad sign.
Fortunately, for Mr. Coello, he was released the next day, after various people–including Senator Marco Rubio–intervened on his behalf. An ICE spokesman said that he was detained “because he has a misdemeanor criminal conviction and had stayed in the U.S. longer than his visa allowed.”
I contacted Mr. Coello’s attorney, Elizabeth Blandon, and learned that his conviction was for trespassing (he was originally charged with misdemeanor possession of marijuana). I also learned that the Asylum Office issued a letter on the day of his arrest stating that the case had been sent to the Immigration Court. In fact, Mr. Coello’s case is not with the court, and the issue of jurisdiction (i.e., who will hear his case–an Asylum Officer or an Immigration Judge) is yet to be worked out. Until that happens, his case remains in limbo.
Frankly, it is unclear to me why ICE detained Mr. Coello. His conviction was for a minor violation, which is probably not even a deportable offense. One possibility is that ICE targeted him due to the mistaken belief that he had more than one misdemeanor conviction (trespassing and marijuana possession). Another, more conspiracy-minded, possibility is that ICE arrested Mr. Coello because he was a well-known activist from Venezuela. As the situation in Venezuela has deteriorated, the number of asylum cases from that country has soared. Currently, Venezuelans are filing more affirmative asylum applications than people from any other country. Maybe ICE wanted to send a message in an effort to intimidate potential Venezuelan applicants and stem the tide of cases from that troubled country. Normally, I tend to shy away from such conspiracy theories, but in this case, where the applicant is well-known in his community, I am not so sure.
Mr. Coello’s case is not the only instance of an asylum seeker being detained since President Trump took office, and rumors have been swirling about the new hard-line approach of his Administration. We have heard reports about an HIV-positive Russian asylum seeker, who was detained after visiting the U.S. Virgin Islands and then returning to the mainland (the problem here is probably that a person must go through customs to enter the U.S. from the USVI, and he did not get Advance Parole before leaving and trying to return). He was held for a month before being released. There have also been examples of ICE officials arresting asylum seekers who have been charged with crimes when they appear in criminal court. (And of course, there are the thousands of asylum seekers who arrive via the Mexican border without a visa and who are detained when they request asylum–but this began en masse long before President Trump’s time).
It’s not just asylum seekers who are being detained. Aliens applying for other USCIS benefits have also been arrested. For example, there were five cases where immigrants were notified to appear for USCIS interviews, and were then detained when they arrived at the USCIS office. Apparently, all five had prior deportation orders from Immigration Judges. There’s also the case of a woman who was arrested at a courthouse after filing a protective order against her ex-boyfriend. According to one news source, the woman had an extensive criminal history and had illegally re-entered the United States after being deported.
In addition to all this, there is the now-famous (at least in immigration circles) case from February of a domestic flight from San Francisco to New York where ICE agents checked IDs for everyone disembarking the plane (ICE claims that the searches were “consensual”). Supposedly, ICE was searching for an alien with a criminal record. Turns out, he wasn’t even on the flight.
So what does all this mean? Do asylum seekers risk arrest when they appear for their interview? Or when they show up for a court hearing? Or when they travel domestically? The short answer, at least for now, is no, no, and no.
First, except for the person returning from the USVI, the common denominator in the above cases is that all the aliens had a criminal conviction and/or a deportation order. If you do not have a criminal record or a removal order, there is no reason to believe that ICE will detain you if you appear for an appointment, court date or domestic flight. Indeed, except for the examples above involving criminal convictions and deportation orders, I have not heard about any asylum applicants being detained.
If you do have a criminal conviction (or even an arrest) or a removal order, then there is some risk, but it’s unclear exactly how to assess that risk. How likely is it that a person with a criminal record or removal order will be detained if they appear for an interview? Does the likelihood of detention increase with the severity of the criminal conduct? I do not know, and I am not confident that the few examples discussed above help us evaluate the chance of trouble. But given that there is some risk, it seems worthwhile for anyone with a criminal conviction or a removal order to consult with an attorney before going to an appointment with USCIS.
If I had a conviction or a deportation order, and I was scheduled for an asylum or other USCIS interview, I would want to know a few things from my lawyer. First, I would want to know the likelihood of obtaining the benefit that I have applied for. If my case is very weak and unlikely to succeed, maybe I would be less willing to appear for an interview where I risked detention. Also, I would want to know how seriously the government views my criminal conduct. If the conviction is very minor, I would expect that the likelihood of ICE detention is low (but maybe not, as Mr. Coello’s trespassing conviction illustrates). If the conviction is serious–and many convictions subject an alien to mandatory detention–I would want to know that too. In fact, I would want to know all this before I even apply for asylum or other immigration benefit. Why start the process when it is unlikely I will be able to successfully complete it, especially if applying for the benefit exposes me to possible arrest?
Every person must make his or her own decision, weighing the risk and reward of applying for an immigration benefit. But if you have been arrested or convicted of a crime, or if you already have a deportation order, it would be wise to talk to a lawyer before you file an application or attend an interview with USCIS.
For the last few years, the “hot topic” in asylum has been the backlog–the very long delays caused by too many applicants and too few adjudicators. I recently wrote about the backlog at the Asylum Office and what can be done to expedite a case. One commenter suggested that I write a post about expediting cases in Immigration Court, and since I aim to please, here it is.
Courts are still wrapping up the last of Justice Marshall’s immigration cases.
The first thing to note is that the backlog in Immigration Court is huge. According to recent data, there are over 542,000 cases pending in court (not all of these cases are asylum). The average wait time for a case in Immigration Court is 677 days. The slowest court is Colorado, where wait times average 994 days. That’s a long time, especially if you are separated from family members while your case is pending. For what it’s worth, I have previously written about some ideas for reducing the wait time in Immigration Court (you will be shocked to learn that EOIR has not yet contacted me to implement these ideas!).
Second, advancing a case is not easy. The Immigration Court Practice Manual, page 101, specifically notes that, “Motions to advance are disfavored.” The motion should “completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced.” Health problems or separation from family may good reasons to advance. I discuss these and other possible reasons here (the post relates to affirmative asylum cases, but the same logic applies).
Third, expediting a case in Immigration Court is not as straightforward as expediting a case at the Asylum Office. There are different approaches that you can take, depending on the posture of your case. For advancing a case (and for the case itself), it is very helpful to have the assistance of an attorney. Indeed, according to TRAC Immigration, 91% of unrepresented asylum applicants in Immigration Court have their cases denied (whether they get other relief, like Withholding of Removal, I do not know). If you can afford a lawyer (or find one for free), it will be to your benefit in expediting and winning your asylum case in court.
OK, before we get to the various approaches for advancing a court case, let’s start with a bit of background. A case commences in Immigration Court when the Notice to Appear–or NTA–is filed with the court. The NTA lists the reasons why the U.S. government believes it can deport (or, in the more bowdlerized parlance of our time, “remove”) someone from the United States. After the court receives the NTA, it schedules the alien for an initial hearing, called a Master Calendar Hearing (“MCH”). At the MCH, the alien–hopefully with the help of an attorney–tells the Immigration Judge (“IJ”) whether the allegations in the NTA are admitted or denied, and whether the alien agrees that he can be deported. In most asylum cases, the alien admits that he is deportable, and then informs the Judge that his defense to deportation is his claim for asylum. The IJ then schedules the alien for a Merits Hearing (also called an Individual Hearing), where the alien can present his application for asylum, and either receive asylum (or some other relief) or be ordered deported from the United States. Depending where in this process your case is, the procedures to expedite vary.
If you have the NTA, but the MCH is not yet scheduled: In some cases, the alien receives an NTA, but then waits many months before the MCH is scheduled. In this case, the delay usually lies with DHS (Department of Homeland Security), which issues the NTAs and files them with the Court, rather than with the Court itself. The Immigration Court has an automated number that you can call to check whether your case is scheduled for a hearing date. The phone number is 1-800-898-7180. Follow the prompts and enter your nine-digit Alien number (also called an “A number”). The system will tell you whether your case is scheduled and the date of the next hearing.
If the system indicates that your “A-number was not found,” this probably means that the NTA has not yet been submitted to the Court. Contact the local DHS/ICE Office of the Chief Counsel and talk to the attorney on duty. Perhaps that person can help get the NTA filed with the Court, so the case can begin.
If your A-number is in the system, but there is no MCH scheduled, contact the Immigration Court directly to ask the clerk for an update. If the Court has the case, it may be possible to file a motion (a formal request) to schedule the case. However, if an IJ is not yet assigned to the case, such a request may disappear into the void once it is filed. Most lawyers (including me) would generally not file a motion until a Judge is assigned, as it is probably a waste of time, but maybe it is possible to try this, if your lawyer is willing.
While you are waiting for the Court to docket your case (i.e., give you a court date), you can gather evidence and complete your affidavit. That way, once the case is on the schedule, you will be ready to file your documents and ask to expedite.
If the MCH is scheduled: Sometimes, MCHs are scheduled months–or even years–in the future. If your case is assigned to an IJ and you have a MCH date, there are a couple options for expediting.
First, you can file a motion to advance the date of the MCH. If the MCH is sooner, the final (Merits) hearing will be sooner as well. Whether the IJ will grant the motion and give you an earlier appointment is anyone’s guess. Some IJs (and their clerks) are good about this; others, not so much.
Second, you can request to do the MCH in writing (in lieu of attending the hearing in-person). Check the Immigration Court Practice Manual, pages 70 to 72, for information about filing written pleadings. If the Judge allows this, you can avoid attending the MCH and go directly to the Merits Hearing. Just be sure that your affidavit and all supporting documents are submitted, so you are ready to go if and when the IJ schedules you for a final hearing.
Many attorney, including me, do not like filing motions to advance the MCH or motions for a written MCH. The reason is because they often do not work, and so what happens is this: You prepare and file the motion, call the Court several times, and ultimately have to attend the MCH anyway. When lawyers spend time doing extra work, it is fair for them to charge the client additional money. So don’t be surprised if your lawyer tells you that filing a motion will cost extra.
At the MCH: Typically, when you go to the MCH, the IJ gives you the first date available on her calendar for a Merits Hearing. But there are a few things you can do to try to get the earliest possible date.
One thing is to complete the entire case (the affidavit and all supporting documents) and give them to the IJ at the MCH. That way, if there happens to be an early opening, you can take the date (and sometimes, IJs do have early dates–for example, if another case has been cancelled). Many lawyers (again, including me) don’t love this because it requires us to do all the work in advance, and it often does not help. Don’t be surprised if the lawyer wants to charge extra for getting the work done early (many lawyers–and other humans–prefer to put off until tomorrow what we do not need to do today).
Second, you (or your lawyer) can try to talk to the DHS attorney prior to the MCH to see whether any issues in the case can be narrowed (usually, it is not possible to talk to DHS about the substance of the case prior to the MCH, as they have not yet reviewed the file). If that happens, maybe you will need less time to present the case, and you can tell the IJ that you expect a relatively short Merits Hearing. It may be easier for the IJ to find a one-hour opening on his calendar than a three hour opening (normally IJs reserve a three-hour time slot for asylum cases), and so you may end up with an earlier date. Even if you cannot talk with the DHS attorney, you can tell the IJ that you expect to complete the case in an hour and try to convince him to give you an earlier date, if he has one.
Third, if you have a compelling reason for seeking an earlier Merits Hearing, tell the IJ. If you have evidence demonstrating the need for an earlier date, give it to the IJ. Maybe the Judge will not have an earlier date available immediately, but at least he can keep the situation in mind and accommodate you if an earlier date opens up.
Finally, if you simply arrive early at the MCH and get in line, you may end up with an earlier Merits Hearing date than if you show up late to the MCH since IJs usually give out their earlier dates first.
After the MCH, but before the Merits Hearing: Waiting times between the MCH and the Merits Hearing are very variable, depending on the Immigration Judge’s schedule. Assuming that the IJ has given you the first available Merits Hearing date (which is normal – see the previous section), there is not much point in requesting an earlier date immediately after the MCH. Maybe if you wait a few months and if luck is on your side, a spot will open up and your request will be granted. Or–if the Judge has an effective clerk–you can file a motion to advance, and the clerk will save it until a spot opens up for you.
Another possibility is to talk to the DHS attorney to see whether issues can be narrowed, which might make it more likely that the case can be advance (see the previous section).
Some words of caution: Keep in mind that the Immigration Court system is a mess. Judges come and go. Priorities shift, which sometimes causes cases to be moved. It is quite common for court dates to change. Even if you do nothing, a far-off date may be rescheduled to an earlier day, or an upcoming hearing might be delayed. If you successfully advance your court date, it is possible that the Court will later rescheduled your case to a more distant date (this happened to us once). It is difficult to remain patient (and sane) through it all, but maybe being aware of this reality will somehow help.
Also, remember to make sure that your biometrics (fingerprints) are up to date. If not, you may arrive at the Merits Hearing only to have it delayed because the background checks were not complete.
Finally, do not give up. Immigration Judges are human. If they see a compelling reason to expedite a case, most of them will try to help. Explain your situation to the Judge, or let your lawyer explain, and maybe you will end up with an earlier date.
These days, the estimated wait time for an affirmative asylum case is somewhere between eternity and forever. It can best be expressed numerically as ∞. Or maybe as ∞ + 1. In other words, affirmative asylum cases take a long damn time. (OK, to be fair, you can get some idea about the actual wait time here).
Asylum seekcars waiting for their interview.
For some people, this wait is more of a problem than for others. For example, if your spouse and children are outside the United States waiting for you, and especially if they are living in unsafe or unhealthy conditions, the wait can be intolerable. A growing number of people are abandoning their cases simply because they cannot stand the separation. Others are moving to Canada, which apparently has a faster system than we have in the States. The problem is not simply that the wait is long—and the wait is long. The problem is that we cannot know how long the wait will be. Maybe the interview will come in six months; maybe in three years. Maybe the decision will come shortly after the interview; maybe it will take months or years. This unpredictability contributes to the difficulty of waiting for a resolution to the case.
For others people—single people without children or families that are all together here in the U.S.—the wait may be stressful, but it’s far more bearable. For my clients in this position, I advise them to live as if they will win their cases. What else can they do? To live under the constant stress of potential deportation is unhealthy. And the fact is, most of my clients have strong cases, and the likelihood that they will succeed it pretty high. So it is best to live as normally as possible. Find a job, start a business, buy a house or a car, go to school, make friends, get on with life. In the end, if such people need to leave the United States, they will have time to wind down their affairs and sell their belongings. For now, though, if I may quote the late, great Chuck Berry, Live like you wanna live, baby.
But what if you want to try to expedite your case? How can you maximize the chances that the Asylum Office will move your case to the front of the line?
First, before you file to expedite, you need to complete your case. The affidavit must be finished and all the evidence must be organized and properly translated (if necessary). If you expedite a case and the case is not complete, it could result in real problems. For example, I once had a client put himself on a short list without telling me. Then one day, an Asylum Officer called me and said that they wanted to schedule his interview for the following week. The problem was, the evidence was not submitted (or even gathered) and the affidavit was not done. The client insisted on going forward, and so (while I helped with interview preparation), I withdrew from the case. I did not want to remain affiliated with a case that was not properly put together, and I did not want to represent a person who took action on his case without informing me. In general, there is no value in expediting a case only to lose because you are not prepared for the interview, so make sure your case is complete before you try to expedite.
Second, you need a good reason to expedite. Remember, you are asking to jump your case ahead of hundreds–maybe thousands–of people who are also waiting for their asylum interview. Why should the Asylum Office allow you to do that? One common reason is that the applicant has a health problem (physical or mental). If that is your reason, get a letter from the doctor. Also, provide some explanation for how an early resolution of the asylum case might help improve your health situation (for example, maybe you have a health problem that is exacerbated by the stress of a pending case).
Another common reason to expedite (and in my opinion, the most legitimate reason to expedite) is separation from family members, especially if those family members are living under difficult or dangerous circumstances. If an asylum applicant wins her case, she can file petitions to bring her spouse and her minor, unmarried children to the United States. Many people come to the U.S. to seek asylum not for themselves, but because they fear for the safety of their family. Since it is so difficult to get a U.S. visa, it’s common to see asylum seekers who leave their family members behind, in the hope that they can win asylum and bring their family members later. So when the wait for an interview (never mind a decision) is measured in years, that’s a real hardship. For our asylum-seeker clients with pending applications, we have seen cases where their children were attacked in the home country, where family members went into hiding, where children could not attend school or get medical treatment, where families were stuck in third countries, etc., etc., etc. Such problems can form the basis for an expedite request.
To expedite for such a reason, get evidence of the problem. That evidence could be a doctor’s note for a medical problem or an injury, or a police report if a family member was attacked or threatened. It could be a letter from a teacher that the child cannot attend school. It could be letters from the family members themselves explaining the hardship, or letters from other people who know about the problems (for advice on writing a good letter, see this article). Also, sometimes family members receive threat letters or their property is vandalized. Submit copies of such letters or photos of property damage. It is very important to submit letters and evidence in support of the expedite request. Also, remember to include evidence of the family relationship–marriage certificate or birth certificates of children–to show how the person is related to the principal asylum applicant.
There are other reasons to request an expedited interview: Until an asylum case is granted, applicants may not be able to get certain jobs, they cannot qualify for in-state tuition, they face the general stress of not knowing whether they can stay. While these issues can be quite difficult to deal with, I think that they do not compare to the hardships suffered by people separated from family members. Indeed, if I were in charge of the Asylum Division, I would allow expedited interviews only in cases of family separation.
Once your case is complete and you have gathered evidence in support of the expedite request, you need to submit the request and evidence to the Asylum Office. Different offices have different procedures for expediting. You can contact your Asylum Office to ask about the procedure. Contact information for the various Asylum Offices can be found here.
One last point about expediting asylum cases: The system for expediting cases is not well-developed, meaning that sometimes, a strong request will be denied or a weak request will be granted. There definitely seems to be an element of luck involved in the expedite request process. But of course, unless you try to expedite, you can’t get your case expedited. If an initial request is denied, you can gather more evidence and try again (and again). At least in my experience, most–but not all–cases where there was a good reason to expedite were, in fact, expedited.
Besides expediting asylum cases, it is also possible to put your case on the “short list,” which may result in an earlier interview date. You can learn more about that and a few other ideas here.
It is still unclear how changes in the new Administration might affect the speed of asylum cases, but I doubt that the asylum backlog is going away any time soon. In that case, for many people, the only options are to learn to live with the delay or–if there is a good reason–to ask for an expedited interview and then to hope for the best.
This article is by Ruth Dickey, a brilliant and dashing associate at Dzubow & Picher, PLLC.
During the latter part of the Obama Administration, it became common for DHS/ICE attorneys (the prosecutors) in Immigration Court to offer “prosecutorial discretion” or PD. If the applicant accepted PD and the Immigration Judge agreed, the case would be administratively closed. Basically, it would be taken off the court’s calendar and placed into a permanently pending status. Applicants with weak cases might take PD rather than risk losing their cases with the Judge and getting ordered deported.
Perhaps USCIS has a case of the Gremlins. First, they sabotaged B-17’s and P-52’s; now, they’re messing with I-765’s.
Under President Obama, PD was typically offered to people who were not enforcement priorities for ICE – that is, the person had positive factors, like long-term ties to the United States and did not have any disqualifying criminal issues. During the Obama Administration, ICE published a list of factors that prosecutors would consider when a person asked for PD. According to recent data, since 2013, almost 67,000 court cases have been administratively closed based on PD. This represents about 10% of all case closings in Immigration Court.
If your asylum case was administratively closed by an Immigration Judge, and if you had your employment authorization document (“EAD”) based on a pending asylum case, you remain eligible to renew the EAD for as long as the case is in administrative closure (theoretically, forever). This is because the case is technically still pending, and thus still “alive” for purposes of renewing the EAD.
Since Donald Trump came into office, DHS has largely done away with PD, and so we can expect to see far fewer cases administratively closed in the future. However, our office has several asylum clients whose cases were already administratively closed. They have ongoing needs, such as the need for an EAD.
One of my clients in this situation is an Unaccompanied Alien Child or UAC. UACs are people who crossed the border as minors without a parent or guardian. Such people are given additional procedural protections. For example, UACs have the right to present their asylum claims to an Asylum Office, which is a less intimidating environment than an Immigration Court. In my case, an Immigration Judge administratively closed my client’s case so she could file her case with the Asylum Office. Before the case was closed, I “lodged” her asylum application with the Court to start her “asylum clock,” which then allows her to file for an EAD (after a 150-day waiting period).
When the time came, our office prepared the EAD application (form I-765) and mailed it. Last week, we received a response denying the EAD. In its denial, USCIS referred to the applicable regulation, 8 CFR 208.7(a)(1), claiming that it said:
An applicant whose asylum application has been denied or closed by an asylum officer or by an immigration judge within the 150-day [clock] period shall not be eligible to apply for employment authorization.
But this is not what the regulation says. USCIS inserted the phrase “or closed” into the language of the actual regulation. The full sentence in the regulation actually reads:
An applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization.
Someone at USCIS added the words “or closed” to their quotation of the regulation, and then denied our client’s case because it had been administratively closed. The actual language of the regulation states that only denied–not closed–cases are ineligible for an EAD. The idea that USCIS would add language to the regulation in order to improperly deny someone–a UAC no less–their work permit is shocking and distressing.
I have already escalated the issue to the USCIS Ombudsman, an office that can assist with delayed or difficult USCIS cases, because the denial is so problematic. I am waiting to hear back from them, but the Ombudsman’s review process can drag out for months, and my client will not have a work permit in the meantime. This is extremely frustrating for her, especially because she is young and vulnerable (she has that UAC designation for a reason).
If your case has been administratively closed and your EAD application has been denied, please let us know. If there are others experiencing this problem, we can present the issue to USCIS and hopefully seek a resolution of this unfair and harmful practice.
Former House Speaker, and Donald Trump adviser, Newt “The Brain” Gingrich recently made plain what Mr. Trump has been arguing for months: The new Administration is planning “straight-out war” against the federal bureaucracy. But in my time, there are two things that I’ve learned about ideological wars: (1) The casualties are flesh-and-blood human beings, and (2) Everyone involved thinks that G-d is on his side.
“Sidekick to a bully” is not a job title many government lawyers relish.
In this case, Mr. Gingrich was speaking specifically about the troubled Department of Veterans Affairs, which he accused of various sins amounting mostly to half-truths (or perhaps whole lies). But we’ve seen a pattern with Mr. Trump’s appointments. For example. the new head of the Department of Energy wanted to eliminate that agency in 2012. The leader of the Environmental Protection Agency doubts human-influenced climate change and will likely prevent that organization from issuing regulations to protect public health. And the new Secretary of the Department of Housing and Urban Development will be Dr. Ben Carson, whose main qualification seems to be that he lives in a house.
But the situation for the Departments of Justice and Homeland Security are a bit different, at least in terms of those agencies’ oversight of our nation’s immigration laws. In those cases, it’s more likely that Mr. Trump will be ramping-up enforcement at the possible expense of other immigration functions (like processing immigration benefits).
Senator Jeff Sessions will lead the DOJ as Attorney General. He is known for his opposition to immigration reform and his belief that legal immigration to the United States should be reduced. So how will Senator Sessions’s appointment affect DOJ in terms of immigration enforcement? DOJ administers the nations Immigration Courts and the Board of Immigration Appeals (“BIA”), and (within some limits) interprets our immigration laws. As Attorney General, Mr. Sessions has the power to narrow precedents favorable to non-citizens. He can do this directly, by issuing Attorney-General opinions, which supersede decisions made by the BIA. He can also do it indirectly, by appointing ideologically like-minded Judges and BIA Members. DOJ also administers the Office of Immigration Litigation (“OIL”), which defends BIA decisions in the federal courts. Mr. Sessions could order OIL to take more hard-line stances, and he could push litigation that reflects his restrictonist viewpoint.
How would this be different than what we have now? The atmosphere for aliens in immigration proceedings has never been easy. That’s particularly true for aliens convicted of crimes. But at least in most cases, I have found that Judges, BIA Board Members, and OIL attorneys are reasonable, and do their best to follow the law. Sometimes that means deporting people who are very sympathetic; other times, it means allowing people to stay who they believe should be deported. The problem comes when we have DOJ attorneys who are more concerned with ideological ends than with due process. We saw this most clearly when Attorney General John Ashcroft purged liberal (or supposedly liberal) BIA Board Members at the beginning of the George W. Bush Administration. Perhaps we will see a similar reshuffling in the months ahead.
For fair-minded attorneys, Judges, and Board Members at DOJ, that’s a frightening prospect. Are their jobs in jeopardy? Will they be forced to take positions contrary to their conscious, or contrary to their interpretation of the law? Many immigration benefits–such as asylum–contain a discretionary element. Will the ability to exercise discretion be intolerably curtailed?
It’s still unclear whether attorneys and officers at the Department of Homeland Security will face the same potential dilemmas as their DOJ counterparts. The new Secretary for DHS will be retired Marine Corps General John Kelly, who is widely viewed as non-ideological. Under the DHS ambit are several agencies that impact immigration, including U.S. Immigration and Customs Enforcement (“ICE”), which is basically the immigration police and prosecutors, and U.S. Citizenship and Immigration Services (“USCIS”), which administers immigration benefits, including asylum. We have yet to learn who will lead these agencies, and probably the choices for those posts will have more effect on the officers and attorneys “in the trenches” than General Kelly, who is overseeing the entire agency.
Currently, DHS attorneys, Asylum Officers, and ICE officers have a fair bit of discretion in handling cases, especially cases where the alien has no criminal record. DHS attorneys often can decide whether to keep an alien detained, they can offer prosecutorial discretion, and they can decide how aggressively to pursue an individual’s deportation or whether to agree to relief. Asylum Officers also have a fair bit of discretion to determine credibility and decide on relief.
The attorneys, officers, and Judges I know at DHS and DOJ are generally intelligent, caring individuals who do their best to follow and enforce the law without inflicting undo harm on individuals and families. They are aware of their power and their responsibilities, and they take their jobs seriously. Sometimes, I disagree with them on their interpretation of the law. Sometimes, I think their approach is unnecessarily aggressive. In some cases, we evaluate the merits of a case differently. While we do not always agree, I can see that they are performing an essential function by fairly enforcing our nation’s immigration laws.
In speaking to some DOJ and DHS attorneys and officers since the recent election, I have seen a certain level of demoralization. Some people have expressed to me their desire to leave government service. While these individuals respect and follow the law–even when the results are harsh–they are not ideological. They do not hate immigrants (or non-white people, or Muslims) and they do not want to enable or contribute to a system that they fear will become overtly hostile to immigrants that President Trump considers undesirable. I suppose if I have one word of advice for such people, it is this: Stay.
It’s likely that if you are a government employee who is sympathetic to non-citizens, your job will get more difficult, the atmosphere may become more hostile. It will be harder to “do the right thing” as you see it. Opportunities for promotions may become more limited. Nevertheless, I urge you to stay. We need you to help uphold the law and ensure due process for non-citizens and their families. To a large extent, our immigration system is as good or as bad as the people who administer the law. We need the good ones to stay.
I haven’t written about the asylum backlog in awhile. Mostly, that’s because the subject is too depressing. Cases are taking years. Many of my clients are separated from their spouses and children. A number of my clients have given up, and left the U.S. for Canada or parts unknown. The backlog has also made the job of being an asylum attorney more difficult and less rewarding–both financially and emotionally. That said, I suppose an update on the backlog is overdue. But I warn you, the news is not good.
“Let’s talk about the asylum backlog… again.”
The most recent report from the USCIS Ombudsman—which I have been trying not to look at since it came out in June—indicates that the affirmative asylum backlog (the backlog with the Asylum Offices, as opposed to the Immigration Court backlog) has increased from 9,274 cases on September 30, 2011 to 128,303 cases as of December 31, 2015. This, despite significant efforts by the Asylum Division, and the U.S. government, to address the issue.
The Ombudsman’s report lists five main reasons for the dramatic increase in backlogged cases: (1) high volume of credible and reasonable fear interviews; (2) a rise in affirmative asylum filings; (3) increased numbers of filings with USCIS by unaccompanied minors in removal proceedings; (4) the diversion of Asylum Office resources to the Refugee Affairs Division; and (5) high turnover among asylum officers. Let’s take a closer look at what’s going on.
First, the number of credible and reasonable fear interviews at the border have increased significantly over the last several years (when an asylum seeker arrives at the border, she is subject to a credible or reasonable fear interview, which is an initial evaluation of asylum eligibility). The numbers for FY 2015 were slightly down from a high of about 50,000 interviews in FY 2014, but FY 2016 looks to be the busiest year yet in terms of credible and reasonable fear interviews. The reasons that people have been coming here in increased numbers has been much discussed (including by me), and I won’t re-hash that here. I do suspect that the upcoming election—and talk of building a wall—is causing more people to come here before the door closes. Maybe after the election, regardless of who wins, the situation will calm down a bit.
Second, the number of affirmative asylum applications has also increased. There were 83,197 applications in FY 2015—up 130% from FY 2011. There are probably many reasons for the increase, but I imagine the chaotic situation in the Middle East, violence in Central America and Mexico, and political persecution in China are important “push factors.” The relatively strong U.S. economy and the presence of ethnic communities already in the United States are a few factors “pulling” migrants to our country.
Third, an increased number of minors in removal proceedings have been filing their cases with the Asylum Division. Unaccompanied minors who have a case in Immigration Court are entitled to a non-confrontational asylum interview at the Asylum Office. The number of these children requesting an interview has increased from 718 in FY 2013 to 14,218 cases in FY 2015, and these cases have added to the Asylum Division’s case load.
Fourth, President Obama has increased the “refugee ceiling” from 70,000 to 85,000. In order to process these cases and bring the refugees from overseas, the Refugee Affairs Division has been borrowing asylum officers—about 200 such officers will be sent to the RAD for two months stints. And of course, if they are working on refugee cases, they cannot be working on asylum cases.
Finally, the Asylum Division’s efforts to reduce the backlog have been hampered by a high turnover rate among Asylum Officers. According to the Ombudsman’s report, the attrition rate for Asylum Officers was 43% (!) in FY 2015. Some of the “attrition” was actually the result of officers being promoted internally, but 43% seems shockingly high.
As a result of these factors, wait times have continued to grow in most offices. The slowest office remains Los Angeles, where the average wait time for an interview is 53 months. The long delays in LA are largely because that office has a high proportion of credible and reasonable fear interviews (“CFIs” and “RFIs”). New York, which is the only office where wait times have decreased, has an average wait time of just 19 months. The NY office does not have a detention facility within its jurisdiction, and so there are fewer CFIs and RFIs. As a result, the NY office is better able to focus on “regular” asylum cases and can move those cases along more quickly.
The Ombudsman report also discusses post-interview wait times, which stem from “pending security checks, Asylum division Headquarters review, or other circumstances.” The wait time between a recommended approval and a final approval has increased from 83 days in FY 2014 to 105 days for FY 2016. Also, the delay caused by Headquarters review has increased to 239 days in FY 2016 (I wrote about some reasons why a case might be subject to headquarters review here). In my office, we have been seeing delays much longer than these, primarily for our clients from Muslim countries.
The report discusses delays related to Employment Authorization Documents (“EADs”). Regulations provide for a 30-day processing time for EADs, but USCIS “regularly fails to meet” that deadline. Indeed, the processing time for EADs at the Vermont Service Center is “at least 110 days,” which—based on my calculations—is somewhat longer than the 30-day goal. One improvement in this realm is that EADs for asylum applicants will now be valid for two years instead of one (this change went into effect earlier this month). If EADs are valid for a longer time period, USCIS will have fewer EADs to renew, and hopefully this will improve the overall processing time.
The Asylum Division has responded to this mess by (1) hiring new officers; (2) establishing new sub-offices; (3) publishing the Affirmative Asylum Scheduling Bulletin (I discuss why the Bulletin is not a good predictor of wait times here); and (4) developing new EAD procedures.
The number of new Asylum Officers has increased from 203 in 2013 to over 400, as of February 2016, and USCIS was authorized to employ a total of 533 officers in FY 2016. USCIS has also been trying to mitigate the high level of turnover. They created the “Senior Asylum Officer” position, which, aside from offering a fancy title, may allow for a higher salary, and they have scaled up their training programs in order to get more officers “on line.”
In addition, USCIS has opened new sub-offices, including one in Crystal City, Virginia, which will (hopefully) employ 60 officers to conduct exclusively CFIs and RFIs by phone or video link. Supposedly, the Crystal City office will assist Los Angeles with its CFIs and RFIs in an effort to reduce the close-to-eternal backlog in that office.
Finally, USCIS is trying to improve the EAD process. One change is that applicants who move their case from one Asylum Office to another will no longer be penalized for causing delay. Previously, if an applicant caused delay, her Asylum Clock would be stopped and she could not get her EAD. USCIS has also proposed a rule change so that an applicant’s EAD will automatically be extended when she files for a new card. I wrote about this proposed (and much-needed) change almost one year ago, and it has yet to be implemented. Lastly, as mentioned, EADs are now valid for two years instead of one.
So there you have it. There is no doubt that USCIS and the Asylum Division are making efforts to improve the situation. But unless and until the crisis at the border subsides, it seems unlikely that we will see any major improvements in the way cases are progressing through the system. So for now, we will wait, and hope.
And now, part 2 of my interview with Paul Wickham Schmidt (if you missed part 1, it is here):
ASYLUMIST: Your Chairmanship ended in April 2001, a few months into the George W. Bush Administration. What happened?
PWS: John Ashcroft was President Bush’s first Attorney General. He was advised by Kris Kobach, who was then at DOJ. Kobach is now Secretary of State in Kansas and is well known for his outspoken restrictionist positions. Ashcroft and his people did not like some of the Board opinions, and they particularly did not like Board Member Lory Rosenberg and several others of us. They apparently thought the Board was too liberal, even though the so-called “liberal wing” was consistently outvoted on almost all meaningful precedents where there was a “split Board.”
Paul Wickham Schmidt relaxes after being grilled by The Asylumist.
I’d add that the dissenters have eventually been proved right by subsequent decisions from the Federal Courts and even from the BIA itself on issues like protection for domestic violence victims, more critical examination of IJ credibility decisions, application of the categorical approach and modified categorical approach to crimes, and a less restrictive approach to CAT protection. Board Member Rosenberg was known for being quite outspoken in separate opinions criticizing some of the BIA’s jurisprudence. But, she often was proved right over time. Indeed, the Supreme Court favorably cited one of her dissenting opinions, something that, to the best of my knowledge, no other Board Member has ever achieved. So, in many ways we were punished for being ahead of our time.
About a week after Ashcroft got there, EOIR Director Kevin Rooney told me that the DOJ leadership wanted me out as the Chair. It wasn’t Kevin’s decision. He made it clear that he was just the messenger. Because I was a career member of the Senior Executive Service, this decision probably violated Civil Service rules which would have required the new Administration to keep me in place for a period of time – perhaps 120 days – before booting me to another position. But I realized that if Ashcroft didn’t want me, I could not survive in the job, and dislodging me might hurt the BIA by provoking an attack on the entire institution to justify removing me. I wanted to resolve the situation; not stretch it out, and I wanted something workable. If I had resisted, it might have been a little hard to justify moving me, since I had all outstanding performance reviews with SES bonuses up until that point, but then they could have started attacking the Board, and I did not want that.
I was not ready to go back into private practice. Also, I did not want to move to another location — at the time, I was taking care of my dad, who was in a retirement home near the BIA. Also, I wanted to avoid becoming a “hall-walker” at the DOJ.
I asked Kevin what I could do. I thought (completely naively as it turned out) that they might need some loyal opposition, so I asked whether I could step down as Chair and go to the BIA as a Board Member. Eric Holder, Deputy AG, a Clinton appointee at DOJ, and future Attorney General under President Obama, was still there during the transition. If he had been gone, who knows what would have happened? Also, there had been a regulation change creating more BIA positions. So we agreed that I would step down as Chair, and with Eric Holder’s assistance, I become a BIA Board Member.
It all happened quickly—in a week. I announced that I was stepping down as Chair. It was a fake-y announcement. I said I wanted to spend more time adjudicating cases and less time managing. Lori Scialabba, who was one of my Vice Chairs, and is now the Deputy Director of USCIS, became Acting Chair. I did not change my views about the law; I regularly voted against the majority on issues that were important to me, particularly asylum and other protection issues. But I continued doing my job.
Then came the reorganization where Ashcroft cut Board Members. He removed Board Members John Guendelsberger, Cecelia Espenosa, Lory Rosenberg, Gus Villageliu, and me. Technically, Lory left before the final cut, and another Board Member who undoubtedly would have been axed, applied for a voluntary transfer to an IJ position in another city. I learned about it when Kevin Rooney (who at one point was my career hero) called me up to his top floor office. He was shaking, and he told me, “You did not make the cut.” He said, “They did not like some of your opinions, particularly dissents where you joined with Lory Rosenberg.”
There was no application or interview process to decide who should stay and who should go. There was no interview. The reason I was cut is because they did not like my opinions—Ashcroft apparently wanted a cowed, compliant Board where nobody would speak up against Administration policies or legal positions that unfairly hurt migrants or limited their due process.
Part of the stated rationale for the reorganization was that there were too many Board Members and it was too contentious, and therefore not “efficient.” In the Government immigration world, “efficiency” is often a buzzword for actions that take away or reduce the rights of migrants. But the workload clearly demanded more than the 12 Board Members that Ashcroft left. A few months after the cut, they had to start using BIA staff attorneys as “temporary” Board Members because they needed more Board Members to do the work. Some of these attorneys eventually became Board Members. So they were upgrading staff, rather than doing independent hiring. Basically, this was a cover up for Ashcroft’s inappropriate and politically motivated reduction in permanent Board Members. The real reason for the reduction in the BIA’s size was to eliminate opposing views from the dialogue.
ASYLUMIST: How do you think these changes have affected the Board?
PWS: Well, the picture has not been pretty. The summer of 2000 was the last time that an outsider was appointed to the Board. In my view, many of the current Members are “going along to get along,” because the clear message of the Ashcroft cuts was that resisting the majority, particularly speaking up for the rights of migrants, could be career threatening. The Board has abandoned the pretense of diversity. Also, the idea that they can operate effectively with a smaller number of Members is simply a ruse. The BIA uses temporary Members to fill the gap. But they cannot vote en banc, so this truncates the en banc process. The Board ends up rubber-stamping cases. Also, since mostly three-Member panels, rather than the en banc Board, now issue precedent decisions, the majority of Board Members are able to escape accountability on most such cases because they don’t have to take a public vote. Only the votes of the three panel members are publicly recorded. The BIA also seldom hears oral argument anymore, so it has become very distant and inaccessible to those most affected by its decisions. Moreover, quietly and gradually, the BIA has had to add additional permanent Board Members because the Ashcroft cuts left the BIA short of the number required to do the work. But, there never has been a public acknowledgement by EOIR or the DOJ of what Ashcroft did and why it has been necessary to take corrective action.
I respect the current Board Members, indeed many of them are personal friends, and I certainly recognize the difficulties of their job. But, almost none of the current Board Members have substantial achievements in the private immigration sector, particularly in the area of asylum scholarship and asylum advocacy. They are all appointed from within Government, which is often viewed as a way of bringing in reliable “company people,” who won’t rock the boat. This is supposed to be the Supreme Court of immigration. But it is not actively trying to attract the best and brightest from all sectors of immigration practice, including private practice, academics, clinical professors, and NGO leaders, in addition to those with substantial achievements in government service, in a fair competitive selection process.
One problem is that Board Member positions are less attractive today because they are less visible, less secure, and viewed by some as an assembly line operation after the Ashcroft reforms. A Board Member can be moved to the FOIA unit if they are out of political favor. As a result, the Board doesn’t get the type of outside applicants it really needs – partners in major law firms, tenured academics, respected clinical professors, and high ranking NGO officials, at a time when our system needs their voices more than ever. The example set by Ashcroft is continuing—the current Administration has not changed that. Board Members do not rock the boat, and they all too often do not reflect or fully understand the needs of other constituencies from outside government service, particularly the needs of asylum seekers and others seeking protection in today’s chaotic Immigration Courts.
Maybe the BIA has reduced the backlog, but that has been done with smoke and mirrors. The quality of work has fallen off. They reduced the backlog by compromising the most important function of Board: Guaranteeing due process to individuals appearing in Immigration Court, which requires courageous public deliberation and spirited dialogue on the most important and controversial issues, where dissenting positions are accepted as an essential part the judicial dialogue and therefore supported, rather than suppressed. In my view, since the Ashcroft purge, the BIA has become a deliberative body that no longer publicly deliberates. That’s bad for the public, bad for the justice system, bad for due process, and, actually, bad for the Board Members themselves
ASYLUMIST: And what happened to you, after the “purge”?
PWS: I thought about volunteering to become an IJ, but then I would have had to leave Washington, DC. I did not want to leave my community, plus my dad was still in the area. Kevin floated the idea of early retirement, but I did not want that either.
EOIR created non-judicial positions for some of the “cut” Board Members, like glorified staff attorney positions or senior jobs in the General Counsel’s Office. To show how ludicrous this was, at a time when the Board needed experienced judges more than ever, some of the top judges in the system, who had been selected following a competitive nationwide search, were sent off to perform non-judicial work at the same salary. There was an almost immediate adverse reaction from the Circuit Courts as the Board launched many “not quite ready for prime time” decisions into the judicial review process.
Kevin said I could become an Assistant Chief Immigration Judge (“ACIJ”), but no position was open at the time. I waited for weeks. I was going to be out as a Board Member, but I had not been reassigned. EOIR sent me to IJ training school, but I was still part of the BIA. I went to en banc meetings, but I sat mute. After the IJ training, I did not have a start date or a position. I was a “lame duck,” and I was angry and frustrated.
Finally, I told Kevin that I had to go. There was no reason for me to be there. My things were packed. But then he told me that Ashcroft had directed that I be moved to an IJ position in Arlington, Virginia. He told me that a vacancy had been created overnight, and the Attorney General moved me to the top of the “waiting list.” The Arlington Court was a desirable posting, so there was a waiting list for internal transfers there. Kevin said that someone decided I should be in an adjudication position. It was a huge break for me to get out of the Headquarters “Tower” in Falls Church. I doubt that I would have remained at EOIR as long as I did if I had been in the Tower. I had too much pent up anger, and the Tower would have reminded me of it every day. The Arlington Immigration Court was a great chance for me to put all of that behind me.
I think someone went to bat for me at the Department; I had no relationship with the Attorney General, so I theorize that someone must have intervened on my behalf to put me in Arlington. So, I’m probably the only Immigration Judge who got the position without ever applying for it.
ASYLUMIST: We’ve only covered about two-thirds of your career, but I know you need to get back to the really important things in life, like your kayak, so I’ll ask one last question: Suppose you were the “Immigration Czar,” what would you do with EOIR?
PWS: As you know from history, being a “Czar” of anything can be a life-limiting opportunity. Having had several “career-limiting opportunities” already, I think I’ll take a pass on that job. But seriously, I’m glad you asked the question. Here is my “five-point program” for a better Immigration Court–one that would fulfill its vision, drafted by a group of us when Kevin Rooney was the Director: “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all.”
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best. Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos. Evidently, the idea of the prioritization is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts.
Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. If there are to be nationwide policies and practices, they should be developed by an “Immigration Judicial Conference,” patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary “consumers” of the court’s “product.”
Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Council. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system like ours. The judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds–particularly those with expertise in asylum and refugee law–have been so few and far between.
Fourth, as you know, I would repeal all of the so-called “Ashcroft reforms” and put the BIA back on track to being a real appellate court. A properly comprised and functioning BIA should transparently debate and decide important, potentially controversial, issues. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca and the BIA itself in Mogharrabi are not being followed.
Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.
ASYLUMIST: Very ambitious! I’d love to hear more, but that would probably take another day or two.
PWS: Thanks for the offer. But, all things considered, I’m heading out onto Linekin Bay in my kayak. Due process forever!
ASYLUMIST: Thank you so much for your time and your thoughts. Happy paddling.
Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (“BIA”) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.
ASYLUMIST: How did you get started in the field of immigration?
Since he retired, Judge Schmidt has been doing a lot of this (eat your heart out, Burmanator!).
PWS: My wife, Cathy, and I had both spent our whole lives in Wisconsin. After I graduated from law school, we wanted to go somewhere else. Because I went to law school in Wisconsin, I did not have to take the bar—I was granted automatic admission to the Wisconsin bar. I’ve actually never taken a bar exam. I knew if I got a job with the federal government, I would not have to take a bar, so I was interested in working for the feds. Also, I had an uncle from Wisconsin who went to DC to work for the Roosevelt Administration and stayed for an entire career, and that also attracted me to federal service.
I applied to the Department of Justice through the Honors Program, but they rejected me. At the time, the Board did not actively recruit from the Honors Program, but they looked at the pool of applicants, liked my writing experience, and asked me to apply. I didn’t know anything about immigration, so the first thing I did was to go to the law school library and learn about immigration law. Then, we drove to Washington, DC for the interview. I met the Chairman, Board Members, and the Executive Assistant. Following an afternoon of interviews, the Chairman, Maurice A. “Maury” Roberts, a legendary immigration “guru,” called me in and said, “We discussed it at conference, and you’ll do.” With that auspicious beginning, I was hired. It was 1973. At the time, the BIA had nine staff attorneys and five Board Members.
I liked the job. It was a great group of people, and I learned a lot about the law. Chairman Roberts was a mentor to me and my office-mate. I also worked with the late Lauri Steven Filppu, who became a close friend, and who went on to become a Deputy Director of the Office of Immigration Litigation and then served with me on the BIA.I liked the human interest element and that it involved creative thinking. However, there was an ideological divide among the Board Members. At that time, Board Members were political appointees, rather than career appointments as they are today. The most senior Board Member had been appointed by President Truman. Chairman Roberts was appointed at the end of the Johnson Administration. I believe the other three Board Members were appointed during the Nixon Administration and did not have prior immigration backgrounds. Also, in those days, oral argument was a right, and the Board had four days of oral argument each week.
While I was there, Lauri Filppu and I helped form the BIA employees union, which was led by our friend and colleague Joan Churchill. She later became an Immigration Judge in Arlington and served with me there for several years before her retirement. One impetus for forming the union was an incident where the Board librarian was fired in the middle of our Christmas party. We thought that was harsh. The union still exists today. Indeed, as Chairman, I later had to go “head to head” with the union on an arbitration relating to the assignment of offices.
ASYLUMIST: You started as BIA staff. How did you get to be Chairman of the Board of Immigration Appeals?
PWS: I left the BIA at the end of 1975. I felt I had done what I could do there, and the work was getting repetitive. I was ready for something new, and so I moved to the General Counsel’s office at INS. At the time, Sam Bernsen was General Counsel. He was an amazing guy, who started as a messenger on Ellis Island when he was 17 and worked his way up to the top ranks of the Civil Service. He was also a good friend of Chairman Roberts. I advanced in the General Counsel’s office, and by the end of the Carter Administration, I was the Deputy General Counsel and the Acting General Counsel. The Deputy General Counsel basically ran the day-to-day operations of the INS’s nationwide legal program. The General Counsel during the Carter Administration, David Crosland (now an Immigration Judge in Baltimore) was the Acting Commissioner of the INS for about the last half of the Administration. At the time, I was only 31 or 32 years old. In that period, we were re-organizing the legal program. The GC took over supervision of Trial Attorneys (they were previously supervised by the District Directors – they now are called “Assistant Chief Counsels”). We also replaced Naturalization Attorneys with paralegals. Some of these changes were controversial within the INS. I got yelled at a lot by some of the District Directors. But, I can yell pretty loud too. This was really the beginning of what today are the Offices of Chief Counsel at the DHS. And, I worked on legislation, including the Refugee Act of 1980, which brought me into contact with David Martin and Alex Aleinikoff who later became well known in the immigration and refugee world. Other big issues I worked on were the so-called Cuban Boatlift and the Iranian Hostage Crisis.
I continued as Deputy GC during the Reagan Administration. I served under General Counsel Maurice C. Inman, Jr., known as “Iron Mike.” He was a real character, but we got a tremendous amount accomplished together. It was more or less a “bad cop, good cop” situation. We completed the legal program reorganization, and I also helped plan and execute the transfer of the Immigration Judges out of INS and into a separate entity, which was the “birth of EOIR” in 1983. Mike left in 1986, and I became the Acting GC again, right at the time that IRCA was enacted. But, I felt like I had reached a dead end.
I applied for jobs at law schools, and I found a head-hunter. However, it was the “Old Girl Network” through Cathy, who was then the president of our co-op preschool, which led to my next job. I was offered a senior associate position at Jones Day, which was just starting an immigration practice. At that point, the Commissioner, Al Nelson, and the Attorney General, Ed Meese, offered me the GC job, which I had always wanted. But, I turned it down. I moved over to Jones Day, and remained there as a partner until 1992.
It was difficult to be an immigration attorney in a general practice firm, and so I eventually went to Fragomen, Del Rey, and Bernsen, where I succeeded my mentor Sam Bernsen as Managing Partner of the DC Office. I did mostly business immigration. While I liked private practice, and learned much that has been helpful in making me a better judge, I felt that business immigration was like working at a well-baby clinic: Highly stressful, but fundamentally routine. We had to do as many cases as we could, as quickly as possible, which made it challenging to take on interesting cases that did not generate significant fees or repeat business. The clients wanted more for less, and there was always pressure to charge more and more money to contribute to the success of the firm. In the end, I suppose my heart was not in business immigration. I liked my clients, my colleagues, and making more money for our family than I had in government, but eventually it was not as satisfying as government work.
Around this time, the BIA Chair position opened up. I liked the idea of being in charge, and I felt there were opportunities to be creative. But, there was a lot of competition for the job. I lobbied the people I knew for their support, and in the end, I was offered the position. I began work in February 1995. I definitely think my experience in the private sector was a significant factor in my getting the job.
The goal when I started was to make the Board into the “13th Circuit,” to make it more like a court, to expand the diversity and the number of Board Members, to publish more opinions, and to develop a more humane and realistic view of asylum law. There was a big backlog, and we needed more Board Members. Up until then, different Immigration Judges were being detailed to the BIA to help with the work, but this system was cumbersome and it was very expensive. The original plan was to expand the Board from five to nine Members, but with then Director Tony Moscato’s help, we managed to expand it to twelve Board Members (four panels of three Members each). Attorney General Janet Reno was receptive to expanding the BIA, and we also increased the staff significantly and set up a team structure with senior supervisors. While I was there, we also changed the appeals filing system so that people could file directly with the Board (instead of filing appeals with the local court), and we added bar codes to help organize the files (up until that time, staff spent a lot of time looking for lost files). All these changes required us to expand the legal and clerical staff. And, the BIA itself kept on growing, reaching a membership of more than 20 just before the Ashcroft purge.
The expanded Board also became more polarized. Essentially, the middle fell out of the Board shortly after the Kasinga case in 1996. Before then, I was often in the majority, but after that time, I was out-voted in most precedential decisions. I think the enactment of the IIRIRA at the end of 1996 also had something to do with it. By the time of the R-A- decision in 1999—one of the most disappointing cases of my tenure because the majority squandered the chance to show real judicial leadership, take the next logical step following Kasinga, and “do the right thing” for domestic violence victims—I was pretty firmly entrenched in the minority for en banc decisions. I therefore often had to write or join separate dissenting opinions, known as “SOPs” in BIA lingo.
ASYLUMIST: This brings up an interesting point. I’ve long felt that the BIA should issue more precedent decisions, to provide more guidance to Immigration Judges. Why doesn’t the Board publish more decisions? And how does the Board decide which cases will be published?
PWS: I think that following the “Ashcroft purge,” the BIA has become hesitant to delve into controversial issues, particularly those that might provoke dissent. During my time at the Board, we did publish more decisions. Indeed, in my first full year as Chair, in 1996, we published approximately 40 opinions, many with separate dissents and concurrences, on cutting edge issues like particular social group, credibility, AEDPA, and IIRIRA. By contrast, in 2015, the BIA published approximately 33 decisions, and neither the dialogue nor the range of issues was nearly as extensive. Even with a greatly expanded and often divided Board, in 1999, one of my last full years as Chairman, we published 50 precedents, many dealing with extraordinarily difficult and complex issues.
The idea later promoted by the “Ashcroft crowd”—that a very large, diverse, and often divided Board cannot produce timely, important guidance–is ridiculous. Any party could request that a case be designated as a precedent decision. But generally, the Board was not receptive to party requests. The Chair or the Attorney General could also designate a decision as precedential. In addition, by majority vote, any panel could recommend a case for en banc consideration, and a majority vote of the Board could designate a decision as precedential. Almost all of the precedents were the result of the en banc process.
Ironically, one the most common reasons for publication was because the majority wanted to “slam” the dissenters’ position. These tended to be cases that illustrated important points or new interpretations of the law. Also, when new laws went into effect, and we had to interpret new statutory provisions, we were more likely to issue a precedent decision. In fact, there was a lot of controversy on the Board surrounding the dissenting positions. The Members generally got along with each other, but there was a lot of stress related to differing viewpoints. Some Members felt that dissenters were attacking the BIA as an institution. My being in the dissent in a number of precedents strained my relationship with some of my colleagues who were almost always in the majority.
Perhaps this was a consequence of my decision to change the format of BIA decisions so they looked more like court decisions. Therefore, Board Members had personal responsibility for their decisions. This made Board Members more accountable for their decisions, but it also gave them more of a personal stake in each decision.
Unfortunately, the BIA today has abandoned one of its primary functions—to provide timely expert guidance on the INA. Instead, it now publishes mostly non-controversial stuff, unless a Federal Circuit Court orders the Board to enter a precedential decision (I call this, “Go fetch me a precedent”). The initiative for shaping immigration law has gone from the BIA to the Federal Courts. There needs to be reform. I think the Board should function like the 13th Circuit; instead, it is more like the Falls Church Service Center. There are far too many single Member decisions, and the single-Member decisions are all over the place. The Board should use three Member panels in all cases where the IJ decision is not suitable for summary affirmance. That’s the “original streamlining” that I instituted, and it was intended to increase dialogue and careful deliberation, not eliminate it, as has been the case under the misguided “Ashcroft reforms.”
The Board also needs to be independent, but I do not see the willingness in the DOJ to make that necessary change, which would require legislation. When the DOJ wants to resist the Circuit Courts, Congress or public scrutiny, they talk about the Board’s expertise. But when the DOJ addresses IJs and Board Members, they refer to them as just “DOJ Attorneys” — employees who should follow the Attorney General. In other words, the DOJ’s external message is, “The BIA is like a court, so due process is provided and you should not intervene,” but the internal message to Immigration Judges and Board Members is, “You exist to implement the power of the Attorney General, you aren’t ‘real’ independent Federal Judges.”
ASYLUMIST: What other changes did you make at the Board while you were Chair?
PWS: We started doing more oral arguments, including oral arguments on the road (this is now prohibited by regulation). I thought if we were to function as an appellate court, we should be seen in the different places. Some Members liked this; others did not. Some thought oral argument was a waste of time. However, once I became an Immigration Judge, as you know, I was able to have oral argument in every case.
The BIA Pro Bono Project also started during my time as Chair. Under the Pro Bono Project, volunteer attorneys come to the Board office, review appeals of unrepresented immigrants, and then assign meritorious appeals to volunteer attorneys for representation. There was a lot of internal opposition to the Project because it was seen as the BIA deciding who gets represented and who does not. We had not done anything like this before. But, it has been highly successful.
The Virtual Law Library was also started under my tenure, with strong support and encouragement from Director Moscato. Also, we instituted an “electronic en banc voting system.” We also eliminated the position of “Chief Attorney Examiner/Alternate Board Member” and gave the duties of overseeing BIA staff to the two Vice Chairs who assisted me. That was after the last Chief Attorney Examiner, Neil Miller, who recently retired, was appointed to the Board by Attorney General Reno.
ASYLUMIST: Let’s take a break. In next week’s installment, Judge Schmidt discusses the “purge,” his prescription for fixing what ails the Board, and other controversial stuff. Stay tuned…
After you file affirmatively for asylum, you will wait for months or years, and then finally, you will have an interview. What happens at this interview? And how do you prepare for it?
The interview is a (supposedly) non-confrontational conversation between the asylum applicant and an Asylum Officer. It takes place in an office; not a courtroom. You can bring an attorney and/or an interpreter with you to the interview. And sometimes, an Asylum Office supervisor or trainee is also present.
A typical Asylum Office interrogation chamber… er, interview room.
Before the interview, when you arrives at the Asylum Office, you need to check in. This consists of giving the interview notice to a receptionist, who will take your photo and fingerprints, and give you a paper to read. The paper reminds you of your obligation to tell the truth and lets you know that you can bring an interpreter with you to the interview. Do not sign the paper—you will sign it once you are with the Asylum Officer in the interview room.
The interview itself is divided into a few parts.
First, the Asylum Officer will explain and administer the oath, during which you will promise to tell the truth. If you have an interpreter, the Asylum Officer will also make her take an oath. For people using an interpreter, the Asylum Officer will call another interpreter on the phone, and this person will monitor the accuracy of the interpretation. If the interpreter you bring makes a mistake, the telephone interpreter will correct it (remember to speak loudly and clearly, so the person on the phone can hear you).
After the oath, the Officer will review your form I-589 and give you an opportunity to make any corrections or updates. It is important to review the form yourself before you go to the interview, so you are ready to make corrections and updates when the time comes.
Once the form is corrected, you will reach the heart of the interview, where the Officer will ask about why you need asylum in the United States. A few points to keep in mind here: First, if the Officer asks you a question that you do not understand, do not answer the question. Instead, ask for clarification. The Officer is typing what you say, thinking about his next question, and reading your file, all at the same time, so he may well ask you a poorly-worded question. It is not a problem—and indeed, it is common—for an applicant to ask the Officer to clarify a question. Do not be afraid to do that. Second, if you do not know the answer to a question, or do not remember the answer, do not guess. Just say, “I don’t know” or “I don’t remember.” If you guess, and your answer is different from your documents (or different from other information that the Asylum Officer has), it may cause the Asylum Officer to believe you are not telling the truth, which could result in your case being denied. Obviously, it is better if you know and remember the facts of your case, so make sure to review your statement before the interview.
There are certain questions that the Officers usually ask, and you should be prepared for them: Why do you fear returning to your country? If you or a family member have been harmed in the past, describe what happened. If you face harm from a terrorist group or other non-governmental actor, can your home government protect you? Is there somewhere in your country where you can live safely? If you are a member of a political party, the Officer might test your knowledge of the party by asking about its leaders or history. If you are seeking asylum based on religious persecution, the Officer might ask you about the tenets of your religion. For people who served in the military or police, the Officer might ask about the nature of your service, and whether you might have engaged in persecution of others. If you ever had any interactions with a terrorist or insurgent group, the Officer will ask about that. The Officer will also want to know about other countries you have lived in, or traveled through. If you left your country and then returned, the Officer may want to know why you returned home then, but do not want to go back now. Also, the Officer will have a copy of any prior visa applications (possibly including applications made to other countries or the United Nations) or any other documentation you submitted in an immigration matter, so you should be prepared for questions about prior applications. Of course, depending on your case, the questions will vary, and that is why it is so important to review your case before the interview and think about the types of issues that might come up (and if you have a lawyer, she should think about and work through these issues with you).
Usually near the end of the interview, the Officer will ask you the “bar questions,” which everyone must answer: Have you committed a crime or been arrested? Are you a terrorist? Did you ever have military training? etc.
Sometimes at the end of the interview, the Officer will ask whether you have anything else to add. If the Officer covered all the major issues, I recommend to my clients that they simply thank the officer and end the interview. Some people want to give a long statement about their desperate situation or their family members’ problems. In my opinion, such statements are not helpful, and could end up causing more problems than they solve.
Finally, the Officer will instruct you about the next steps–the Officer will not give you a decision on the day of the interview. Either you will be required to return to the Asylum Office to pick up your decision (usually in two weeks), or they will send the decision by mail (which could take days, months or years). I always caution my clients, even if the Officer tells you to return in two weeks, it is very common for pick-up decisions to be canceled and turned into mail-out decisions. In other words, until you have the decision in your hand, you have to remain patient, and you cannot make any plans.
The whole interview process can take an hour, but more often, it takes a few hours. On occasion, it takes many hours, and sometimes the Officer will ask you to return another day for more questions.
So what do you do to prepare for the interview? First, make sure you have submitted all your documents and evidence in advance, according to the rules of your local Asylum Office (in my local office—Virginia—for example, we are required to submit all documents at least one week in advance, but local rules may vary). Second, review your statement and evidence prior to the interview. Think about what issues may come up, and how you want to respond to those issues. Bring with you to the interview your passport(s) and any original documents you have. If you have dependent family members as part of your application, they need to attend the interview too (though usually they will not be asked many questions by the Officer). Dress in a respectful manner. Be on time or early.
The interview is a key part of your asylum case. If you know what to expect and are prepared to address the issues–especially any difficult issues–you will greatly improve your chances for a successful outcome.
Asking a lawyer whether you need a lawyer for your asylum case is kind-of like asking a pastry chef whether you should have dessert. My answer: Of course you should hire a lawyer, and have a double helping of Windsor Torte while you’re at it.
A decent lawyer can help you prepare and present your case, and increase the likelihood of a successful outcome. However, there are some people who need a lawyer more than others, and if your resources are limited, you will have to decide how best to prioritize your needs.
“I don’t need a doctor – I’ll fix it myself!”
So how do we know that a lawyer actually improves the chances for success? And who really needs a lawyer, anyway?
First, there has been at least one statistical analysis of how lawyers impact asylum cases, and the result is pretty definitive: Lawyers matter. A study of asylum decisions in Immigration Court by TRAC Immigration finds that, on average, asylum applicants with a lawyer win about 51.5% of their cases. Asylum applicants without a lawyer win only about 11% of their cases (the effect was even more disparate for “priority” cases involving women and children). That’s a big difference, but there are a few caveats to these numbers.
For one thing, the cases reviewed in the study were in court. Such cases are adversarial, and can be procedurally complex, as compared to cases before the Asylum Office. Thus, it is harder for an unrepresented applicant in court to win his case. Also, some applicants receive pro bono (free) legal assistance. However, it is more difficult to get a pro bono attorney if you have a weak or meritless case (or if you have criminal convictions). This creates a vicious cycle, where applicants with bad cases are less likely to receive legal representation, and I think it probably skews the statistics, making it appear that people without lawyers are more likely to lose their cases (since people with weak cases have a harder time finding legal representation). Even considering these factors, it does appear that competent representation makes it more likely that an applicant will be granted asylum.
But if you are like many asylum seekers, you have limited resources. Attorneys can be expensive, and pro bono representation can be difficult to secure. So who really needs an attorney, and who can get by without one?
If your case is before an Immigration Court, it is best to have a lawyer. Most judges will pressure you to get a lawyer, and they will usually give you an extension of time to find an attorney. Court cases are adversarial, which means that if the ICE attorney aggressively opposes relief, it can be very difficult—even for an applicant with a strong case—to effectively present his case, avoid any pitfalls, and obtain a grant.
For applicants whose cases are before the Asylum Office, the story is a bit less clear-cut. Asylum Office cases are (supposedly) non-adversarial. The procedural requirements are generally (but not always) less stringent. Many people prepare their cases and attend the asylum interview without the help of a lawyer (some use paid “translators,” with mixed degrees of success), and there are many examples of pro se (unrepresented) applicants who receive asylum. There are, however, some red flags, which, if present, militate in favor of hiring an attorney.
Asylum applications may be denied if they are not filed within one year of the alien’s arrival in the U.S. There are exceptions to this rule, but if you are filing for asylum more than a year after you’ve come to the United States, it is a good idea to have an attorney.
Asylum applications can also be denied if the applicant has been convicted of a crime, or if the applicant “persecuted” others in her home country (or elsewhere). If you’ve been convicted of a crime, or if you fall into a category where the U.S. government might suspect you of persecuting others (such as police officers, members of the military, members or supporters of armed groups), you should have a lawyer.
In addition, people who provided “material support” to terrorists are barred from asylum. Unfortunately, that covers a broad range of activities. So if you’ve given money or any type of support to a terrorist group—even if you did it under duress—you need a lawyer. Doctors who treated combatants fall into this category.
Other issues that might require the help of an attorney include travel back to the home country (especially after an instance of persecution), or living in a third country before coming to the United States.
Finally, to win asylum, the applicant must show that she faces persecution “on account of” race, religion, nationality, political opinion or particular social group. If you do not obviously fit into one of these categories, it is helpful to have an attorney, who can make a legal argument that your case falls into a protected category, and that you are thus eligible for asylum.
Even if there are no obvious issues in your case, a lawyer’s advice can be helpful. Sometimes, there are problems in a case that are not apparent until a lawyer reviews it. You are far better off identifying and addressing such issues before they become a problem. For those who cannot afford an attorney, or who choose to do their cases pro se, it is possible to win. But some cases are more difficult to win than others, and-especially for these problem cases—the help of a competent attorney can make all the difference.
Let’s say you own a grocery store in Mosul, Iraq. Your town is conquered by the Islamic State, and an IS fighter comes to your store, grabs your teenage daughter, puts a gun to her head, and threatens to rape and kill her unless you give him a glass of water. You pour a glass of water, hand it to your daughter, and she gives it to the fighter. Now, lets say that you, your daughter, and the IS fighter get to the United States and request asylum. Question: Who is barred from receiving asylum? (a) The IS fighter; (b) You; (c) Your daughter; (d) All of the above.
If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.
If you guessed “d”, you win. By giving a glass of water to the IS fighter, you and your daughter have provided “material support” to a terrorist, and you are both barred from receiving asylum in the United States. Even though you gave the glass of water under duress to save your child’s life. And even though it was only one glass of water (what we lawyers call “de minimis“). How can this be?
After the attacks of September 11, 2001, Congress greatly expanded pre-existing law in order to prevent terrorists from taking advantage of our immigration system. These laws include the rules relating to “material support,” which one jurist has called “breathtaking in… scope,” see Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (Acting Vice Chairman Osuna, concurring). The opinion continues:
Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives
Id. And anyone who provides any type of support to these “terrorists” is subject to the material support bar.
The problem is that under these rules, lots of people meet the definition of a terrorist or a person who provided material support to a terrorist. And it’s not just people like the shop owners from Mosul. Under our existing law, George Washington would be considered a terrorist. He led an armed rebellion against Great Britain. Ditto for the other founding fathers. Betsy Ross gave material support by sewing a flag for the rebels. There are more modern examples, of course. How about Nobel-prize winning author and Holocaust survivor Eli Wiesel, who was interned in a Nazi slave labor camp where he provided—you guessed it—material support to the Germans. And how about John McCain, who gave material support to the North Vietnamese by participating in a propaganda video (after being tortured while a prisoner of war). Indeed, even Luke Skywalker would be considered a terrorist under the current rules since he participated in armed resistance against the Empire.
Maybe the picture I am painting is a bit too bleak. While there is no statutory exception for the material support bar, the Secretary of State and the Secretary of Homeland Security have the authority to waive certain Terrorism-Related Inadmissibility Grounds (“TRIG”). In that vein, DHS has issued group-based exemptions that allow people involved with certain “terrorist” groups to obtain status in the U.S. It is also possible to receive an individual exemption through a Byzantine (and sometimes infinite) process. If your application is being held because of TRIG, you can inquire about your case status at TRIGQuery@uscis.dhs.gov.
One government entity that does not have the authority to grant a TRIG exemption is the Department of Justice (“DOJ”). This is significant because the Immigration Courts are part of the DOJ. Thus, Immigration Judges cannot grant asylum cases where the alien is subject to TRIG, even when the alien provided material support under duress. In a depressing, but not particularly surprising decision last week, the Board of Immigration Appeals confirmed that there is no implied duress exception to the material support bar:
[A]bsent a waiver [from the Secretary of State or the Secretary of Homeland Security], an alien who affords material support to a terrorist organization is inadmissible and statutorily barred from establishing eligibility for asylum and for withholding of removal under the Act and the Convention Against Torture, even if such support was provided under duress.
Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The problem is that an alien can only get an exemption after he is ordered removed from the United States, and even then, there is no particular procedure to follow to request an exemption. It seems the best an alien (or his attorney) can do is to contact the DHS/ICE Office of the Chief Counsel and request consideration for an exemption. An exemption is only available if asylum would have been granted but for the TRIG issue. In other words, the alien needs to show that if it wasn’t for the TRIG problem, the Immigration Judge would have granted him asylum (helpful hint to lawyers: If your client is barred from asylum solely due to TRIG, try to get the Judge to state that explicitly in her decision; this will help when applying to DHS for an exemption). If the Secretary of Homeland Security grants the exemption, the alien then needs to re-open his court case in order to receive asylum. Legend has it that DHS does sometimes grant exemptions, so it certainly is worth a try, but my guess is that this is a slooooow process.
Blocking terrorists and their supporters from the U.S. is obviously an important goal–it protects our country and it protects our immigration and asylum system. However, the material support bar is much too broad. It fails to distinguish between terrorists and their victims. Worse, it treats victims as if they were terrorists. The recent ruling from the BIA underlines this sad fact. It also illustrates why the law needs to be changed. As we continue to work for immigration reform, I hope we will keep in mind those who have been victimized by terrorists and victimized a second time by our overly-broad anti-terrorism law.
I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.
DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is 
It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.
