One Giant Leap for a Woman; One Small Step for Womankind

by Jason Dzubow

In a recent decision, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA held that “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group (“PSG”) for purposes of asylum. The decision is significant because it marks the first time that the Board has published a decision essentially endorsing asylum for victims of domestic violence. Applicants who seek asylum under this standard will still need to prove that the level of harm they face constitutes persecution, that they cannot relocate somewhere else within their country, and that their government is unable or unwilling to protect them. 

This decision on PSG has been a long time coming, but–at least in my opinion–it does not go far enough.

Guatemalan Women celebrate their new particular social group.
Guatemalan Women celebrate their new particular social group.

In 2004, in a case called Matter of R-A-, DHS acknowledged that domestic violence could form the basis for an asylum claim. In that case, DHS argued in a brief that R-A- should receive asylum based on domestic violence. In its brief, DHS defined the PSG as “married women in Guatemala who are unable to leave their relationship.” Sound familiar? And that was 10 years ago.

Matter of R-A- never resulted in a published BIA decision (though R-A- herself received asylum in 2009). Since the brief was made public in 2004, asylum attorneys have relied on it to advocate for their clients, presumably with some success (since there is no data on the number of cases granted based on domestic violence, it is impossible to know for sure).

To me, the PSG “married women in Guatemala who are unable to leave their relationship” is awkward and contrived. Moreover, to receive asylum based on a PSG, the applicant must show that she was persecuted “on account of” her membership in the PSG. In other words, the persecutor harmed the applicant because she is a member of the PSG. I am not convinced that the husband was harming A-R-C-G- because she was a married woman who was unable to leave the relationship. He would have harmed her whether or not she was married and whether or not she was able to leave the relationship. The husband may have had access to A-R-C-G- because he was married to her and because she was unable to leave, but he was not motivated to harm her for those reasons.

It seems to me that there is a simpler, more elegant PSG that would have been appropriate for this case: “Women.” I suspect that I am not alone in this opinion. In amici curiae briefs, counsels for the American Immigration Lawyers Association, the UN High Commissioner for Refugees, and the Center for Gender & Refugee Studies argued that gender alone should be enough to constitute a PSG. Also, at least one federal circuit court (you guessed it – the Ninth) has held that “women in Guatemala” might constitute a particular social group.

“Women” makes sense as the PSG in this case. The evidence in the case suggests that the husband would have persecuted any woman who he was with–whether or not she was married or able to leave him. Further, country condition evidence from Guatemala makes clear that women in that country live in dire circumstances. In its decision, the Board notes that Guatemala “has a culture of ‘machismo and family violence,'” including sexual offenses and spousal rape. The victims of this violence are, for the most part, women. And, by the way, they are not just “Guatemalan women.”  I imagine that if a Salvadoran woman, or a Nicaraguan woman, or a Japanese woman lived in Guatemala and integrated into the society, she would face the same problems as a Guatemalan woman. For this reason, the PSG should be “women,” as opposed to “Guatemalan women.”

But the BIA was not willing to go that far. After noting that counsel for Amici argued in favor of gender alone as the PSG, the Board held, “Since the respondent’s membership in a particular social group is established under the aforementioned group, we need not reach this issue.”

Perhaps that is the way of things. It’s best not to push the law too far, even if it makes logical sense, and even where it would protect additional people. A decision granting asylum to women (or men) who face persecution solely because of their gender would likely open the door to many more asylum seekers. Given the current state of affairs in the asylum world–the border crisis, partisan scrutiny from Congress, the backlog–maybe it’s best not to open the door too far. Maybe a relatively limited decision like Matter of A-R-C-G- is the best we could have hoped for.

I don’t mean to minimize the importance of A-R-C-G-. It is obviously a great win for the alien in that case (though the decision does not finally grant her asylum, it seems very likely that that will be the end result), and it will certainly help many women who face harm from domestic abusers. However, the decision codifies a landscape where women–many without the resources available to people like A-R-C-G- and R-A—will be forced to articulate complicated PSGs and demonstrate that they are members of those PSGs. I am not sure how many poor refugee women will actually be able to do all that.

A-R-C-G- was persecuted because she was a woman. Not because she was a Guatemalan woman, not because she was married, and not because she was unable to leave her husband. Matter of A-R-C-G- is an important step towards protecting women victims of domestic violence. Maybe next time, the BIA will take a giant leap.

Continue reading

8 Comments

In (Attempted) Defense of Banning Iranian-American Immigration Judges

by Jason Dzubow

If you follow the news from the Executive Office for Immigration Review or EOIR–the office that oversees the Immigration Courts–you are aware of the recent lawsuit filed by Judge Afsaneh Ashley Tabaddor. Judge Tabaddor is an IJ in Los Angeles. She was appointed in 2005 and has been serving ever since. Judge Tabaddor also happens to be Iranian-American.

Judge Tabaddor has been mistreated by the executive branch. We hope she doesn't leave, and we are root-ing for her.
Judge Tabaddor has been mistreated by the executive Branch. We hope she doesn’t Leave. We are Root-ing for her.

According to Judge Tabaddor’s complaint against EOIR, trouble began for her in the summer of 2012 when the White House–considered by some a radical Muslim organization–invited her to attend a “Round Table with Iranian-American Community Leaders.” After some hemming and hawing over the nature of the event, EOIR granted the Judge leave to attend. But afterward, EOIR banned Judge Tabaddor from adjudicating cases involving nationals from Iran. So in other words, an Iranian American Judge who is active in her community is not permitted to hear cases where the alien is from Iran.

On it’s face, EOIR’s decision seems completely ridiculous and indefensible. It would be like forcing members of the National Association of Women Judges to recuse themselves in cases involving women, or stopping members of a Jewish judges association from hearing cases involving Jews, etc., etc. But can EOIR’s decision somehow be justified? Does it make sense to ban an Iranian-American who is involved in her community from hearing cases form Iran? Permit me to try to make that argument (as an asylum lawyer, tilting at windmills is my specialty).

Perhaps EOIR is concerned about the Judge because Iran is considered our enemy (or–on a good day–our rival). Allowing Judge Tabaddor to hear Iranian cases would be like allowing an American originally from the Eastern Block to serve in the White House during the Cold War (Zbigniew Brzezinski) or like allowing a German-American to lead the fight against Germany in WWI (John J. “Black Jack” Pershing) or against the Nazis in WWII (Major General Carl Spaatz). Hmm, maybe that argument doesn’t work so well after all. Let me put it another way. If you are at war with Japan, you’d better imprison all Japanese-Americans. Wait. Maybe that is not such a good argument either. Let’s try this a little differently. 

It could be that EOIR is worried about the appearance of bias. Appearance is very important for judges. If an IJ is perceived as biased, it reduces our confidence in her decisions. It would be as if five Republican-appointed judges voted to end an election recount, giving the victory to the Republican presidential candidate. Oy. Let me give you a better example. Maybe it would be like allowing a Russian figure skating judge who is married to the director of the Russian Figure Skating Association to serve as a judge at the Sochi Olympics. And then the Russian skater miraculously wins. Harrumph. I guess that one doesn’t work too well either. Maybe we should look at the problem another way.

What if we assume that Judge Tabaddor is, in fact, biased in favor (or against) Iranian respondents. If that is the case, why should the recusal order be limited to cases from Iran? Iran and Iraq fought a war recently, so probably the IJ is biased against Iraq and should not hear cases from that country either. Iran also fought a war with Greece back in the day, and if I were Iranian, I’d still be bitter about the Battle of Thermopylae. So the Judge should also be banned from hearing cases involving Greeks, or at least Spartans. Iran has endured invasions by Mongols and Arabs, so Judge Tabaddor obviously should not hear Mongolian or Arab cases, and since Mongolians were mixed in pretty good with the Chinese, we’d better also ban her from Chinese cases–just to be safe. And of course, Iran doesn’t much like Christians, Baha’is or Jews, so the Judge should probably be kept away from cases involving those faiths. In addition, Iran has disputes with Russia, Azerbaijan, Turkmenistan, and Saudi Arabia. The Judge would have to be banned from hearing cases involving those nationals as well. And don’t even get me started about cases involving Israelis. So basically, if Judge Tabaddor is biased, as EOIR seems to assume, the only cases she should decide involve people from Guyana or New Zealand. And maybe São Tomé, but I’m not even sure that’s a country.

In the end, I really don’t know whether Judge Tabaddor’s lawsuit will succeed. IJs exist to implement the authority of the Attorney General. If the AG chooses to prevent certain IJs from reviewing cases from certain countries, that may be within his discretion. While the law may not be clear (at least to me), I have no doubt about which side is right. If an IJ behaves in an inappropriately biased manner, she should be removed from her job. But where–as here–there seems to be no question as to the Judge’s integrity, her docket should not be restricted in this insulting and discriminatory way.

Continue reading

2 Comments

Towards a New Definition of “Refugee”

by Jason Dzubow

There are, in effect, two definitions of “refugee.” There is the legal definition from the 1951 Refugee Convention (codified in U.S. law at INA § 101(a)(42)), and then there is the lay person’s definition.

The legal definition of refugee includes:

any person who is outside any country of such person’s nationality… and who is unable or unwilling to return to… that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

The lay person’s definition is much broader and includes basically anyone who has been forced to flee from their home due to war or an environmental or man-made disaster. Many people who have been displaced by conflict or catastrophe are refugees under the lay definition, but not under the legal definition.

Refugees or "refugees"?
Refugees or “refugees”?

The mass movement of people–especially young people–escaping violence and poverty in Central America has gotten me thinking about these definitions. As our country struggles to respond to the influx, I wonder whether we need a new definition of “refugee.”

Under current U.S. law, if a person is physically present in the country and meets the legal definition of refugee, he will receive asylum. This is quite a nice benefit to receive. People who get asylum are able to remain here permanently. They can eventually become residents and later citizens. They can travel, work, and attend school. They can sponsor certain family members to join them in the United States. They are sometimes eligible for government assistance. These generous benefits are a “pull” factor because they encourage refugees to seek asylum here (as opposed to staying put or seeking asylum somewhere else). The benefits also create an incentive for people to file fraudulent asylum claims.  

To guard against fraud, we have created an elaborate bureaucracy to evaluate the veracity of asylum claims. We have Asylum Officers, Immigration Judges, the Board of Immigration Appeals, the various DHS Chief Counsels’ offices (basically, the prosecutors in Immigration Court), the Forensic Document Lab, and an extensive system of security background checks. All this costs money and takes time. But I can imagine an alternative to this system.

We could simply categorize as a “refugee” anyone who says that they are afraid to return home. In other words, if someone requests asylum in the United States, they would automatically be granted asylum. This sounds like a stupid plan, you say? Everyone and their brother would seek asylum here, including terrorists and criminals. Worse, it would put asylum lawyers out of business. Maybe so, but indulge me for a moment.

There are some obvious benefits to this idea. For one thing, it would completely eliminate the bureaucracy associated with adjudicating asylum applications. Second, we would never mistakenly return a legitimate refugee to her country. Third, people who do not meet the legal definition of refugee, but who fear return for some other reason, could find refuge in the U.S.

There are also some obvious drawbacks. First, if everyone who asked for asylum got it, very likely the number of asylum seekers would increase. Second, terrorists and criminals might exploit the asylum system to enter the United States. Third, we would lose the ability to control who and how many people come to our country.

But what if we could reduce the drawbacks and keep the benefits?

The main question is how to deal with the likely increased demand under this new system? The easiest way to reduce the “pull” of asylum would be to reduce the benefits of asylum. Basic economic theory suggests that if it is easier to obtain asylum, more people will come here, but if the benefits are reduced, less people will come here. So in order to offset the increased number of asylum seekers caused by reducing the barriers to asylum, we would need a corresponding reduction in benefits. How much of a reduction will provide this balance, I don’t know. But let’s say we reduce the benefits to the bare minimum: People who come here for asylum will be placed in a refugee camp indefinitely, they will receive only the supplies they need to survive, and they can leave only to return to their home country or to resettle in a third country. This is more-or-less the situation for Syrian and Iraqi refugees in places like Jordan and Turkey. My guess is that if this regime were strictly enforced, the overall effect would be to reduce the number of people seeking asylum in the U.S. In other words, the ease of obtaining asylum would be more than offset by the lack of benefits. If this is correct, it means we could offer something more than the bare minimum benefits without causing a major increase in the number of people seeking asylum here. The difficult question is how to find the equilibrium.

Another important drawback to my system is that it might attract criminals and terrorists. Of course if these people were confined to refugee camps, their ability to harm us would be quite limited.

Finally, my system might cause us to lose control of our border, since anyone claiming asylum would get it. But again, if the asylum seekers were confined to camps, and then resettled by the UN to third countries or to the United States, we might actually end up with a better controlled border since we could admit as many or as few people for resettlement as we choose.

Depending on the number of people arriving at our borders, it may be impossible to offer them the full range of benefits and due process protections that we have previously given to asylum seekers. But I don’t think we’re there yet–although there has been an increase in the number of asylum seekers arriving in the U.S., the numbers are still nothing close to what countries like Jordan and Turkey have been experiencing. However, if we continue seeing large numbers of people arriving in the U.S. to seek asylum, we may need to start considering alternatives to our current system.

Continue reading

1 Comment

Premium Processing for Asylum Seekers

by Jason Dzubow

For certain applications with USCIS, the applicant can pay an additional fee of $1,000.00 and receive “premium processing.” For people seeking an H1B visa or a green card based on extraordinary ability, payment of the premium processing fee is the norm, and the result is that USCIS responds to the application (sometimes with an approval, other times with a request for additional evidence) within a few weeks. So should premium processing be available for people seeking asylum?

Waiting in line is a poor man's game.
Waiting in line is a poor man’s game.

There are certainly arguments against such a scheme: Humanitarian benefits should not be for sale, it is unfair to privilege wealthy applicants over poor applicants, asylum is somehow cheapened by making it more expensive. But given the current state of affairs in the asylum world, I think that USCIS should allow premium processing for asylum seekers who want it and can pay for it.

First, the current state of affairs: The asylum system is groaning under the weight of too many applications. Thousands of cases from 2013 are still lost in limbo, and–at least based on my observation of the local office here in Virginia–we seem to be on the verge of another slow down. People separated from family members have no recourse except to wait. And worse, they have no idea how long they will have to wait. The Asylum Offices have created “short lists” where (supposedly) you can put your name on a list, and if a slot opens up, you will be interviewed. So far, at least for my clients, this seems to work not at all. The bottom line is that we are facing very long delays and applicants and their family members are suffering severely.

So how would premium processing help?

Obviously, for those applicants who could pay the fee (whether $1,000.00 or some other amount), their cases would be given priority. This would benefit those applicants who pay the fee, but–if implemented correctly–it would also benefit people who do not pay the fee because the premium processing cases would be removed from the general queue, which would free up interview slots for everyone else.

Quantifying the effect of a premium processing fee is a bit tricky, however. For one thing, it is not easy to find asylum statistics from the government. A good guess is that between 3,500 and 4,000 people per month file affirmative asylum cases. That is approximately 40,000 people per year. If half those people paid a premium processing fee of $1,000.00, an additional $20 million would be pumped into the system. This would be a significant increase in funding. As best as I can tell, the budget for asylum and refugee operations for FY 2014 is about $236 million, so an additional $20 million for asylum operations alone would be a major increase (the asylum and refugee budget is paid for by USCIS application fees from non-asylum cases, so the cost to U.S. tax payers is minimal). With this additional money, the Asylum Offices could hire more officers, provide resources to expedite background checks, set up a system so applicants could track the progress of their cases, and even provide free donuts and coffee to attorneys waiting for their clients’ interviews. In other words, the money could be used to improve the system for everyone, including those who do not pay the fee.

Of course, we don’t know how many asylum applicants would (or could) pay a premium processing fee, but I suspect that many would pay. Remember that asylum applicants differ from refugees in that they have come to the United States on their own. Whether they came legally or illegally, it is likely that they paid for their journey here. Also, many asylum applicants pay attorneys or notarios to prepare their cases. My guess is that many such people would be happy to pay a fee if it meant that their cases would be adjudicated more quickly.

I must admit that I feel a bit uncomfortable about asking asylum applicants to pay the government to adjudicate their cases (which is maybe ironic, since I ask them to pay me). But given the difficulties caused by long delays (separation from family, stress, uncertainty), I feel that the benefits of a premium processing system would far outweigh any disadvantages.

Continue reading

27 Comments

Top 10 Reasons the EOIR Computer System is Down

by Jason Dzubow

If you are an attorney or an immigrant with a case before the Immigration Court, you’ve probably noticed that the computer system has been down for almost two weeks. The phone system for checking case status is not working, and there are all sorts of problems at the courts and the BIA. Apparently, the cause of these difficulties is that some servers in Fairfax, Virginia are broken and cannot easily be repaired. No one seems to know why this happened, and EOIR (the Executive Office for Immigration Review) is not telling us much. The EOIR website says only that they are experiencing a “hardware failure.”

EOIR computer techs are working day and night to solve the problem.
EOIR computer techs are working day and night to solve the problem.

As a public service, I have decided to step in and fill this information gap with unfounded speculation. I figure that if I take the time to write something down, people might as well believe it. So to all those waiting for the system to start up again, take comfort. I present to you the top 10 reasons that the EOIR computers are not working:

10. Juan Osuna forgot to pay the electric bill.

9. The Y2K bug finally kicked in. 

8. The computer shut itself down after it played 35 million games of tic-tac-toe and learned that it is impossible to “win” a removal case. 

7. It is getting more and more difficult to find new vacuum tubes and punch cards.

6. Once the computer calculated that the average time to the next hearing exceeds the life expectancy of the average respondent, it decided there was no point and turned itself off.

5. Everyone who signed up for Obamacare has accidentally been deported.

4. Someone asked the computer to figure out how the Asylum Clock works, and it blew up.

3. Joe Arpaio arrested the computer for helping “illegals” remain in the U.S.

2. If you build a 500 gigabyte computer, someone will file a 501 gigabyte case.

1. Everyone who knows how to fix a computer has already been deported.

There you have it. Some of these explanations may even prove to bear a relationship to reality. If so, remember that you heard it here first.

Continue reading

8 Comments

Why Has the Asylum Office Skipped My Case? Part 2: Solutions

by Jason Dzubow

Last time, I discussed the asylum case backlog from 2013: Why it happened, what (little) can be done to help, and DHS’s justification for processing new cases before old cases. Today, I want to make some suggestions about how DHS might better handle this situation.

DHS has created a new, less humorous version of the old NPR gameshow.

First and foremost, DHS should provide better information about what is happening. While I imagine that DHS does not always know what is happening (after all, the backlog is unprecedented), it could be providing better information to the backlogged applicants. Some info that would be helpful: (1) An estimate of when the backlogged cases will be heard. Maybe DHS has no idea, but at least tell us something. Apparently, many new officers and support staff have been hired. Will some of these people be dedicated to backlogged cases (I’ve heard that at the San Francisco office one or two officers will be assigned to backlogged cases). Is there any sort of plan to deal with the backlog? Leaving applicants completely in the dark is the worst possible way to handle the situation; (2) If a particular Asylum Office has an “expedite list,” it would be helpful to know the applicant’s place in line and how many people are on the list. Is she the third person or the 200th person? This would at least give some idea of the wait time, especially if DHS updated each person’s place in line as they move forward; and (3) It would be very helpful if the Asylum Offices explained why the backlog exists, what they are doing about it (hiring new officers), and what the applicants can do (apply for work permits, criteria to have a case expedited). While people like me can try to tell applicants what we know (and hopefully our information is more right than wrong), it is far better to hear it from the source. Each Asylum Offices has its own website, so it should be easy enough to publish this information.

Another thing the Asylum Offices could do to ease the pain of the backlog is to give priority to backlogged cases based on family reunification. As I noted last time, one justification for the backlog is that applicants can get their work permits while their cases are in limbo. Of course, the work permit is helpful (even crucial) for many applicants, but for people separated from spouses and children, reunification is the number one issue. This is especially true where the family members are in unsafe situations. I know that in a large bureaucracy, nothing is as simple as it seems, but why can’t DHS prioritize expedite requests where the applicant has a spouse or child overseas?

A third possibility is to dedicate one or more Asylum Officers in each office to work on backlogged cases. As I mentioned, San Francisco will assign one or two Officers to deal with the backlog. What about the other offices? At least if we could see some progress–even a little–with the old cases, it would give hope to the people who are waiting.

Finally, once a backlogged case is decided, DHS should give priority to any I-730 (following to join) petition filed by a granted applicant. Family separation is a terrible hardship. At least DHS (and the Embassies) can make up for some of the delay already suffered by moving I-730s for these cases to the front of the line. These applicants and their families have already waited long enough.

In a perfect world, asylum cases would be processed in the order received. However, I understand DHS’s concerns and the reasons for adjudicating new cases before old cases. By providing more information to backlogged applicants and by giving priority to people separated from their families, DHS can ease the pain caused by delay without implicating the policy concerns that brought us the backlog in the first place.

Continue reading

103 Comments

Why Has the Asylum Office Skipped My Case?

by Jason Dzubow

If you are an asylum seeker who filed an affirmative asylum case between about January 2013 and October 2013, you probably have not yet been interviewed, and your case has–seemingly–disappeared into a black hole. Meanwhile, other asylum seekers who filed after you are being interviewed and receiving decisions. So what gives?

The storage room for backlogged asylum cases.
The storage room for backlogged asylum cases.

As best as I can tell, in early 2013, the asylum offices nationwide essentially stopped hearing cases. The reason is because there was an influx of asylum seekers at the US/Mexico border. People who arrive without a visa at the border, and who request asylum, are detained. They then have a “credible fear interview” to determine whether they might qualify for asylum. If they pass the interview, they are generally released and told to return later to present their asylum case to an Immigration Judge.

Because of the large increase in the number of people arriving at the US/Mexico border (and being detained), the Department of Homeland Security shifted Asylum Officers from across the country to the border. DHS prioritized the border cases because those people were detained. Of course, detaining so many people is very expensive; it is also not so nice for the people who are detained. Assuming that no additional resources were available, I suppose it is difficult to argue with DHS’s decision to give priority to the border cases.

To deal with the increased demand, DHS also began hiring new Asylum Officers. The word on the street was that they planned to hire 90 to 100 new officers nationwide (which is quite significant) and that they would be trained and ready before the new year. Sure enough, we started to receive interview notices for our clients sometime in October (most of our clients interview at the Arlington, Virginia Asylum Office). Since October, our clients generally wait from one to three months from the time we submit the application to the date of the interview. That’s the good news.

But since they started hearing cases again, the Asylum Offices have been scheduling people on a last-in, first-out basis. In other words, cases filed after October 2013 are being heard, while cases filed between January 2013 and October 2013 are stuck in the “backlog.” There are two issues I want to discuss about the backlogged cases: (1) Whether there is anything that can be done if your case is backlogged; and (2) Why isn’t DHS doing the cases in the order received?

First, there are a few things you can try if your case is backlogged. For one thing, if 150 days have passed since you filed your asylum application, you can file for a work permit.

If you want to expedite your case, there is a procedure (at least in Arlington) to request an expedited interview. However, there are a number of problems with this procedure. The most serious problem is that it does not seem to work. When you request an expedited interview, your name is placed on a list. If another asylum applicant cancels her interview, you (theoretically) will be given her time slot. The problem is that not many people cancel their interviews, and many people are on the expedited list. Also, if you happen to get an expedited interview, you will have very little notice, and so there may be insufficient time to prepare.

Another possibility to expedite a case is to contact the USCIS Ombudsman. This is the government office that tries to assist immigrants and asylum seekers with their cases, and I have used it successfully a few times (though not for asylum cases). While I have a very high opinion of this office, its ability to expedite cases seems quite limited. One example of where it might be effective is if you have requested an expedited date due to a serious health problem (of you or a family member). After you have made the expedite request with the Asylum Office, and if that office does not expedite the case, the Ombudsman might be able to assist. In short, while the Ombudsman might be helpful for certain situations, it will probably not be able to assist in most cases.

I suppose you could also try contacting a Congressperson, holding a sit-in or going on a hunger strike. I doubt any of these methods will be effective, but it you have luck, please let me know.

The second issue I want to discuss is the logic behind DHS’s decision to hear new cases before backlogged cases. I have the impression (from talking to several people on the inside) that there was a heated debate within the government about how to deal with this issue. It seems there are several reasons why DHS decided to hear new cases before backlogged cases.

The main reason for hearing new cases first seems to be that DHS fears an influx of fraudulent cases. The logic goes like this: If cases are heard in order, delays will ripple through the system, and the average processing time for a case will dramatically increase. Cases will take much longer, but applicants will continue to receive their employment document six months after filing. This will create an incentive for aliens to submit fraudulent applications, which will further clog the system. By hearing new cases first, processing times are faster (except for the people left behind), and the incentive to file a fraudulent case and obtain a work permit is reduced.

Tied to this fear of more fraudulent cases is a fear of Congress. The House recently held hearings on asylum, and there is a general (and probably accurate) belief that the ultimate aim of these hearings is to restrict asylum. DHS believes that increased delays (and thus increased incentives for fraud) in the asylum system will make it easier for the Congress to pass more restrictive laws related to asylum. In other words, DHS does not want to play into the hands of the restrictionists by increasing processing times for asylum cases.

Finally, there is a general belief at DHS that delays are not all that damaging to applicants stuck in the backlog because such people at least have their work permits. If you forget about the stress and uncertainty, it is true that single applicants without children can work and live in the U.S. while their cases are pending. But for people who are waiting to be reunited with family members–especially when those family members are in dangerous or precarious situations–the delays can be deadly.

So that is the basic situation, at least as far as I can tell. Next time, I will discuss some possible solutions to the problem.

Continue reading

314 Comments

Immigration Judge Apocalypse 2014

by Jason Dzubow

Nearly half of the nation’s Immigration Judges are eligible to retire this year.

Last week, I attended the retirement luncheon for one of them: Judge Wayne Iskra. For the past 10 years, I practiced before Judge Iskra at the Arlington, Virginia Immigration Court. I also clerked for him back in 1998-99. He is a wonderful person who was a great inspiration to me and many others. He was also a great judge–he was devoted to ensuring that justice was done, and he had little patience for attorneys (private attorneys or DHS attorneys) who failed to fulfill their duties.

Immigration Judges today...
Immigration Judges today…

The MC at the lunch, Judge Thomas Snow, noted that before his retirement, the Chief Judge repeatedly described Judge Iskra as “irreplaceable.” Finally, Judge Snow realized that when the Chief said that Judge Iskra was irreplaceable, it meant that he would not be replaced.

So the Arlington Immigration Court, which is already very busy and where cases are currently being scheduled into late 2016, will now go from five judges to four. The same thing happened in Baltimore last summer, when another excellent and long-serving IJ, Judge John Gossart, retired.

Although I have not heard news of any mass retirement, the Associated Press reports that almost 50% of the nation’s Immigration Judges are eligible for retirement this year. While I suppose this is good news for people selling condos in Ft. Lauderdale, it is bad news for the Immigration Court system.

...and in 2015.
…and in 2015.

And yes, as the immigration restrictionists love to remind us, certain immigrants prefer delay, so they can buy more time in the United States. But at least in my experience, this is a minority. Granted, my cases may not be typical. Most of my clients have good cases, and so the sooner they get to the merits hearing, the better. Also, many of my asylum clients have family members who they hope to bring to the U.S. if their cases are granted. The longer the delay, the longer they are separated from (and worried about) their family members. So for me, the increased delays are definitely a bad thing.

Also, I am quite certain that the remaining IJs won’t be happy about their depleted ranks. Immigration Judges are already overworked and overburdened. The title of a 2010 Mother Jones article sums it up well–Judges on the Verge of a Nervous Breakdown. From the article:

Caught in the middle [of the Obama Administration’s efforts to increase deportations] are the judges, for whom mind-numbing bureaucracy collides with thorny moral issues. Most of the time, they work without even basic staff like bailiffs and stenographers. Increased immigration enforcement means that their workload is the highest it has ever been—three to four times larger than caseloads in other federal courts.

And of course, mistakes can have dire consequences. As one IJ noted, “It makes me feel ill to grant asylum to someone who I believe is probably lying, but it also makes me sick to think that I have denied protection to someone who really needs it.”

The obvious solution is to hire more (lots more) judges and court staff. But given EOIR’s budget (or lack thereof), this seems unlikely. So here are a few other thoughts:

– Create an easy, secure on-line system to allow EOIR-registered attorneys to do their Master Calendar Hearings by email. Attorneys could enter their appearances, admit or deny allegations, plead to charges, and set dates for Merits Hearings. For complicated cases (and pro se cases), IJs would still require Master Calendar Hearings, but an on-line system would be a great time saver for everyone.

– Hire more DHS attorneys and staff, and encourage them to communicate with attorneys for immigrants. Many issues can be resolved before trial, which saves time. However, because DHS is also short staffed, they do not have the resources to review cases prior to trial and speak with opposing counsel. If they did, it would shorten hearings and make life easier for the IJs.

– Stop deporting so many people. It seems that President Obama is intent on setting deportation records year after year. As a result, hundreds of thousands of people are being placed into removal proceedings. If ICE were more selective about who it tried to deport, DHS attorneys and IJs could focus more on those cases. We don’t ticket everyone who drives over the speed limit. We don’t prosecute everyone who is caught with a joint. We don’t arrest everyone who illegally downloads music. Why? Because we don’t have the resources to do those things, and to do so would require intolerable levels of intrusion into our lives. In the same way, it seems to me, we could relax a bit concerning deportations. Resources–including judges’ time–is limited. We should use that limited resource more efficiently.

– Don’t allow any more IJs to retire. OK, maybe it is not technically legal to force IJs to keep working, but an immigration lawyer can dare to dream. Besides, I want Judges Iskra and Gossart back.

Continue reading

3 Comments

Ten Years an Asylum Lawyer

by Jason Dzubow

It’s hard to believe that I am marking my 10-year anniversary as an owner of my own law firm. It seems like so much longer.

During those years, I have represented over 750 clients, most of whom were asylum seekers. I’ve also had five offices, six partners, two employees, a few contract attorneys, and a whole heap of interns. In short, it’s been an incredible, challenging, exhausting, exhilarating, frustrating, funny, and bizarre 10 years. In commemoration of this grand occasion, I thought I would list some of the more memorable moments of my career as a small-firm lawyer. So without further ado, here we are:

– Starting Out: Before starting my firm, I had to pay back my student loans. Once that was accomplished, I moved to Nicaragua, tried to learn Spanish, and then returned and rented an office below a restaurant in DuPont Circle, DC (at $375/month). I decided to use my old computer, as I didn’t have a lot of cash for a new one. Unfortunately, I had been away for a while and my anti-virus program expired. So as soon as I connected to the internet, my computer got a virus that wiped the entire system. It took over a month to get the computer up and running. An auspicious start it was.

Me, at the beginning of my solo lawyer career.
Me, at the beginning of my solo lawyer career.

– Rats and Flies: Since the office was under a restaurant, you can imagine there were some issues. I shared the office with a friend and fellow asylum lawyer. Once, while he was talking to a client, a rat kept running around the office. I did my best to distract the client and herd the rat out the door. The client was too polite to say anything, but I don’t think she ever came back. We also had numerous infestations of Amityville-Horror-style flies, and one time, part of the ceiling collapsed spilling some strange brown liquid onto our printer.

– My First “Real” Asylum Case: I had done bits and pieces of a few asylum cases before, but I got my first real case in 2004. It was an Ethiopian guy who entered the U.S. illegally at the Mexican border. Two attorneys had already passed on the case because they didn’t like it, so he was stuck with me. Somehow, he ended up receiving asylum, and that win led to one referral and then another. In the last 10 years, I’ve probably represented close to 200 Ethiopians seeking asylum.

– Afghan Cases: By 2006 or 2007, I had done a few Afghan cases, but it was a very small (albeit very interesting) part of my business. Then a potential client came in who had been a well-known TV star in Afghanistan. He couldn’t afford to pay my fee, and so he didn’t hire me. I thought about it for a few days and decided that I wanted to do his case–it was too interesting to pass up. So I called him and said he could pay whatever he could afford. We won the case, and that led to many more Afghan clients. They now represent the majority of my asylum clients.

Me, after ten years.
Me, after ten years.

– Removed from Court in a Stretcher: If you practice immigration law, you know that Immigration Courts are slow. They make geologic time seem speedy. One of my clients from Morocco was particularly eager to receive her green card so she could visit her family back home. But when she heard her court date–something like two years later–she collapsed and could not be revived (even by a DHS attorney who was a former EMT). The end result, she was removed from court on a stretcher. Happily, she was fine, and the next week, we received a notice that her case had been rescheduled for the following month. I have not advised other clients to collapse when they hear their court dates, but I have been tempted…

– My First Lozada Case: Immigration cases that have been denied due to ineffective assistance of counsel can be reopened under Matter of Lozada. Such cases generally requires a bar complaint against the ineffective attorney. Most lawyers (me included) hate this requirement. But in cases of bad misconduct, there is something satisfying about filing a complaint. The first time I filed such a complaint was against an attorney who was incompetent and dishonest. We proved using the lawyer’s own documentation that she had lied to her (now my) client and to the Immigration Court. The Virginia Bar found that she had violated the rules of professional conduct, but declined to punish her because there were “exceptional circumstances.” What were these circumstances? Turns out, she had already been suspended for three years for messing up two other people’s cases (and lives), so the Bar Association felt there was no need to punish her in my case. As I said to the Immigration Judge in our (successful) motion to reopen, the offending lawyer was saved by her own incompetence.

– The Pain of Exile: I represented an Ethiopian asylee who was in removal proceeding after committing a crime. We filed for a 209(c) waiver, which would allow him to remain in the U.S. One witness, his uncle, was a famous singer who had lived in exile since the mid-1970s. Many of his songs were about Ethiopia. We were trying to show that it was unsafe for the nephew (my client) to return to Ethiopia. I asked the uncle, what he thought of his country. “I love my country.” “Would you like to go back,” I asked. “If it was safe, I would go back tomorrow.” Somehow it struck me as profoundly sad that this man had not been back to Ethiopia in 30+ years, but he still loved and missed his country, and kept writing songs about his homeland. The nephew’s case was approved, in part on the strength of this testimony. And as far as I know, the uncle has not yet returned to Ethiopia.

– The Client Who Paid Me $1 Million: OK, this one didn’t happen yet, but here’s hoping.

– The Clients: There are too many to mention. A few I can remember are journalists from Pakistan, Afghanistan, and Iraq. Human rights activists from Russia, DR Cong, Zimbabwe, and Iran. Police officers from Peru and Nepal. A Rwandan woman who saw her family murdered during the genocide. Interpreters for the U.S. military from Iraq and Afghanistan. A Russian politician who was stripped of his citizenship. LGBT people from Serbia, Egypt, Kenya, and especially Sudan (you know who you are). Women’s rights advocates from Afghanistan. Diplomats from Ethiopia, Iran, and Ukraine. People persecuted due to their religion from China, Egypt, Iraq, Bangladesh, and Eritrea. Victims of gang and cartel violence in Central America. And on and on.

Finally, I should also take a moment to thank the people who have helped make this all possible: My staff, who does all the work while I sit around making witty remarks and eating bon bons, and my family, who tolerates long hours, mediocre pay, and occasional rants about the Man. Thank you.

Continue reading

9 Comments

Book Review: Bench Pressed by Immigration Judge Susan L. Yarbrough

by Jason Dzubow

It’s rare to hear from judges about how their jobs affect them. In an engaging new memoir, Bench Pressed, former Immigration Judge Susan L. Yarbrough discusses the human side of adjudicating asylum cases.

Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?
Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?

The book covers five cases decided by Judge Yarbrough–one for each of the five protected grounds (race, religion, nationality, political opinion, and particular social group). Reflecting the time period (1990’s) and the location of her court (Texas), most of the cases involve Latin American applicants. The one exception is a Palestinian man who was used as a human shield by the Israeli army. The IJ gives some background on the country situation and then describes each person’s case. Finally, she talks about how each case affected her.

This book was a quick read, and–as a person who practices asylum law on a daily basis–I really enjoyed it. That said, it seems to me that the book is targeted more for people who are not so familiar with the asylum system. For someone like me, the stories of the applicants are probably the least interesting part of the book. I am more interested in the Judge’s observations of “the system” and of her own reactions to the cases. The stories of the applicants are similar to what I hear from my clients all the time. But for people who do not live this stuff, I imagine that the stories may be the most interesting part of the book (and the stories are interesting).

One surprise in the book was how strongly Judge Yarbrough was affected by these cases. She often described crying after a case, and it was obvious that the job was emotionally trying for her. In some ways, I think she is lucky to “feel” the cases so strongly, though of course it takes a toll. I clerked for an immigration court during the same time that Judge Yarbrough was active, and so I observed IJs in Atlanta, Philadelphia, and (mostly) Arlington, Virginia. I never got the sense that they were as emotionally affected as Judge Yarbrough, and so I think her reactions may be somewhat atypical. Nonetheless, her observations shed important light on the emotional damage these cases can do to the adjudicators (and others in the system).

If there is a weakness to the book, it is that the Judge does not discuss any cases that she denied. I would have been curious to see how a judge reconciles her duty to the law with what she views as the morally correct outcome where those two concepts are in conflict. I recall a federal appeal I worked on where the applicant sought asylum based on fear of persecution by gang members in El Salvador. During the trial, the IJ agreed that he faced persecution and she told him, “I think you are in a terrible situation and I could not have more sympathy for you.” Nevertheless, she denied his case because a protected ground was not “one central reason” for his persecution (I litigated the case in the Fourth Circuit where we lost). I was (and am) curious about how an IJ can square her feelings of sympathy towards an applicant–and her belief that she may be sending the applicant back to his death–with what she views as her duty to enforce the law.

Overall, I thought Judge Yarbrough’s book was a very worthwhile read. If you practice asylum law, you will enjoy reading about the system from the IJ’s point of view. Also, if you are like me, you will find some schadenfreudian (if that is a word) pleasure from reading the Judge’s descriptions of certain government and private attorneys (though she is too polite to name names). If you are not familiar with the asylum system, the book will provide an interesting and entertaining introduction to the people who come to our country for refuge and those who decide their cases.

You can see more reviews of Bench Pressed and buy the book here.

Continue reading

4 Comments

The End of Asylum as We Know It – Part II

by Jason Dzubow

Last time, I wrote about the influx of credible fear applicants and how this is straining the asylum system all across the U.S. Since then, I’ve communicated with attorneys in different parts of the country, and they are confirming that Asylum Offices are interviewing very few asylum applicants anywhere. Instead, they are focusing on credible fear interviews. This means that applicants (including many of my clients) are stuck in what appears to be an indefinite limbo. Thus, the question: Is this the end of the asylum system as we know it?

I have never been accused of being an optimist, but I think the pretty clear answer here is “no.” Or, maybe more accurately, “no, but…” Here’s why:

"Don't worry. The Asylum Office will get to your case before you're my age. Probably."
“Don’t worry. The Asylum Office will get to your case before you’re my age. Probably.”

First, the Asylum Offices are in the process of hiring significant numbers of new officers. It takes time to train the new hires, but even so, we should start seeing their impact within the next six months. In addition, the rumors I’ve been hearing indicate that the Asylum Offices expect to begin shifting resources back to asylum relatively soon (I’ve heard various dates, including October 2013 and January 2014).

Second, the influx at the border will eventually slow down. If my theory (discussed in the prior posting) is correct and the new arrivals are being drawn here by the possibility of immigration reform, that “pull” factor will eventually go away. Either reform will pass or it will be killed by House Republicans. Once the issue is resolved, the added incentives it creates will likely disappear.

Third, and possibly most important, asylum is the law of the land, and there is nothing on the table to change that. Although there are certainly people and groups who would like to curtail or eliminate the asylum program, there really is no organized movement to change the law.

All that being said, I don’t expect that the current problems signal the end of asylum as we know it. However (and here’s the “no, but…” part), I suspect that the current problems will lead to a “new normal” in the asylum system. I also suspect that this new normal will not be as good as the old normal.

For one thing, there is some (disputed) evidence that aliens arriving at the border are becoming more sophisticated about making credible fear claims. Thus, the new normal might involve more resources devoted to credible fear interviews and less devoted to asylum cases (since Asylum Officers currently adjudicate both types of cases). Most likely, since many credible fear applicants are detained (at government expense), DHS will do the fiscally responsible thing and prioritize the credible fear cases. This could lead to increased waiting times for asylum seekers.

In addition, even if the credible fear caseload were resolved today, there would still be a large backlog of pending asylum cases to work through. Assuming no further disruptions, it will probably take years to interview and decide all the backlogged cases. And of course, new cases are coming in all the time.

Also, the world situation has been conspiring to increase the number of people seeking asylum in the U.S. Violence in Mexico is ever on the increase. Our disengagement from Iraq and Afghanistan has caused many people who worked and fought with us to flee for their lives. War in Syria and trouble in Egypt have created new refugee flows.

Finally, legislative and attorney-driven changes in the law have expanded the categories of people eligible for asylum–these days, asylum can be granted to victims of forced family planning, victims of FGM and domestic violence, people persecuted due to their sexual orientation, and people subject to forced marriage. I believe most of these changes are positive and life-saving, but when the number of people eligible for asylum expands, the number of people applying for asylum will likely go up. This further burdens the system. 

All these factors point to a future where asylum cases are adjudicated more slowly than before. So while I don’t believe we are witnessing the end of asylum as we know it, I do think the new normal will be a more difficult environment for people seeking asylum in our country. In the third part of this series, I will discuss some policy responses to this new situation.

Continue reading

2 Comments

The Needs of the Many Do Not Outweigh the Needs of the Few or the One

by Jason Dzubow

One of my clients was recently referred from the Asylum Office to Immigration Court due to his failure to file for asylum within one year of arrival in the United States. The client was not thrilled with the referral (as you can imagine) and with some other aspects of the interview, and so he filed a complaint with the Asylum Office. He did not tell me about the complaint until after he filed it. He said that he thought it would be better if I did not know, as it might jeopardize my other clients’ cases or my relationship with the Asylum Office.

In fact, there are times when advocating for one client might cause problems for future clients or relations with different government agencies. However, in immigration law, as in other areas of the law, the needs of the many do not outweigh the needs of the few or the one (i.e., the client).

Lawyers of course must be zealous advocates for our clients. But what do we do when advocacy for one client might result in problems for future clients?

If Spock had been an immigration lawyer, things would not have ended well for the Enterprise.
If Mr. Spock had been an immigration lawyer, things would not have ended well for the Enterprise.

Another way this question comes up at the Asylum Office is at the interviews themselves. I tend to take a less confrontational approach, as that is what works for me. A lawyer friend of mine takes the opposite approach. He is always complaining to supervisors and threatening to sue. I don’t know which of us has a higher approval rate, but his method works for him. Nevertheless, you can imagine how a lawyer who is confrontational in one case might receive a less-than-warm reception when he appears before the officer in the next case. But does that mean he should tone it down in case A in order to benefit the client in case B?

The question can also arise in Immigration Court. I once appealed an Immigration Judge’s decision to the Board of Immigration Appeals and won. When I was before the IJ in an unrelated case, he called me to the bench and spoke to me about the appeal. He did not seem particularly pleased to have been reversed. It so happens that I have a lot of respect for this Judge, and I do not think the appeal impacted his view of me or my other cases. Nevertheless, when he mentioned the appeal to me that day, it raised those concerns in my mind.

As to whether lawyers should hold back in one case in order to avoid possible harm in future cases, I think the answer is clearly “no.” We are obligated to zealously advocate for each client without regard for how it might affect future case. Of course, “zealous advocacy” does not mean being disrespectful or behaving inappropriately. But zealous advocacy might involve making complaints. Or filing lawsuits.

When I think about the question of the needs of the current client versus the needs of a future client, I think about Paul Farmer. He is the doctor, described in Tracy Kidder’s Mountains Beyond Mountains, who has done tremendous work in Haiti (and elsewhere) helping care for the sick and establishing community health clinics. Dr. Farmer was often faced with patients whose treatment would be expensive and risky. Other health professionals felt that the (limited) money available to treat people might be better spent on helping more people who had a greater chance for a successful outcome. But Dr. Farmer seemed always to help the person in front of him, regardless of the cost. When he came to the next patient, he would gather the resources he needed and treat that person as well. From an ethical point of view, this comports with the idea that life is sacred, and that each human life is infinitely valuable.

I think it is the same in asylum law. We have to do our best with the case before us, regardless of whether it might jeopardize relations with an Asylum Officer or a Judge. In my experience, though, when we make arguments respectfully, and when those arguments are legally supportable, the adjudicators do not hold such behavior against us. So while the needs of a future client do not outweigh the needs of the current client, we usually do not have to choose between the two.

Continue reading

One Hell of a Monday

by Jason Dzubow

Last Monday was a busy day for my family and me. Originally, I planned to attend an asylum hearing for a Burmese client in Virginia and to send another attorney (Ruth Dickey) to cover an Eritrean asylum case in Baltimore. At the same time, my wife and I were expecting our second child on Tuesday. Since our first born arrived late, and since the doctor seemed to think Number Two would follow a similar pattern, I hoped to complete both cases and then focus on the family.  Of course, nature takes its own course, and things did not work out as I planned.

When a new baby arrives, hijinks are sure to ensue.
When a new baby arrives, hijinks are sure to ensue.

Early Monday, my wife’s water broke, and we were off to the hospital. I figured the Eritrean client was in good hands, and I left a message at 2:00 AM for the court clerk in the Burmese case stating that I would not be able to attend the hearing that day. I figured the Immigration Judge would understand, and I already gave the client a letter to present to the IJ in case the baby arrived early.

Labor progressed through the morning, and at some point I learned that the Eritrean client received asylum. The DHS attorney was fairly satisfied with the case we presented, and only asked to hear about the client’s journey to the U.S. So after a short direct and cross, focusing basically on the client’s travel, DHS agreed to a grant (and so did the IJ). (Congratulations to Ruth on a job well done).

More surprising news came later. I managed to reach my Burmese client, and I told her that I would not make it to court after all. I assumed that we would receive a new court date, and I would try the case at that time. I must admit that I wasn’t thrilled with this option. Country conditions in Burma have been improving, which is great for Burma, but not so great for Burmese asylum cases. A delay might result in a weaker case. Also, delays can be very long, and this client had already been waiting for almost two years for her day in court. But clients, like new babies, have minds of their own. My client did not want to wait for another court date, and so (unbeknownst to me) she told the IJ that she wanted to proceed with her case without me. Like the Eritrean case, the Burmese case was fairly strong, and DHS was mostly convinced that asylum should be granted. So the DHS attorney cross examined the client about her case, and in the end, agreed to a grant.

I suppose the lesson is that most asylum cases are won or lost prior to court. If the DHS Trial Attorney is presented with a strong case and is convinced that the respondent qualifies for relief, odds are good that they will agree to a grant of asylum. And when DHS agrees, the IJ will almost certainly follow suit.

So, the final results for Monday: Two asylum grants and one new baby girl (who is hanging out with me as I type this). Not a bad day’s work, if I may say so myself (and yes, I suppose some credit goes to my wife for the baby and to Ruth for litigating the case in Baltimore).

Continue reading

4 Comments

The Seven Habits of Highly Annoying Immigration Judges

by Jason Dzubow

Well, I’ve dissed immigration lawyers, asylum-seeker clients, and the BIA, so I might as well offer my criticism of Immigration Judges. Of course, this comes with the usual disclaimer: None of the IJs that I appear before have any of these annoying habits. But I have heard speak of such problems from other lawyers (terrible, terrible people), so please blame them for this list. If you need names and addresses, email me offline. With the shifting-of-the-blame thing out of the way, here is the list:

7 – Changing Court Dates: I suspect that most immigration attorneys have a schedule best explained by Chaos Theory – Make a small change to the delicate balance in our calendars and things fall apart. Obviously, IJs sometimes need to postpone (or advance) hearings. The problem comes when hearing dates are changed without checking with the attorney first. This potentially creates scheduling conflicts for the lawyer, who must then file a motion to change the court date. This can be stressful and time consuming (and it might add to the client’s expenses). The better approach is for the clerk to contact the attorney prior to changing the court date. In my experience, when this happens (rarely), it is done by phone. Perhaps it would be easier for the clerk to contact the attorney using a new technology called email. This would be more efficient for all involved, as attorneys could avoid motions to re-schedule and IJs would not have to deal with such motions. 

Mocking litigants is generally considered an annoying habit (even if they deserve it).
Mocking litigants is generally considered an annoying habit (even if they deserve it).

6 – Double Booking: This issue is less of a problem these days, at least in my home courts. But there was a time when my Individual Hearings were commonly double booked. This meant that we prepared for the hearing, went to court, waited (sometimes for hours), and were then told to go home. Given client stress and attorney time wasted, I am glad that double bookings have become more rare.

5 – Denying Cases: OK, I really shouldn’t complain about this, as it is part of an IJ’s job. But it is kind of annoying.

4 – Failing to Rule on Motions: I understand that IJs are busy people. But if IJs could rule on motions in a timely manner, it might increase overall efficiency. Pleadings can be done by motion, thus reducing crowds at Master Calendar Hearings. Issues for trial can be narrowed, making trials less time consuming. Some cases can be resolved completely by motion. You get the idea. The problem, however, is that since IJs cannot be relied upon to rule on motions in advance of the hearing, it is not really worth the attorney’s time to write the motion (and then spend more time repeatedly calling the court to ask whether the motion has been granted). If IJs consistently responded to motions in a more timely way, lawyers would file more motions, and cases might be resolved in a more efficient manner.

3 – Stopping the Asylum Clock: As I have written previously, the rules governing the Asylum Clock are–to put it diplomatically–ridiculous. Different IJs interpret the rules differently. Some IJs interpret the rules restrictively and some even appear to make an effort to prevent the respondent from obtaining a work permit. Given the long waiting periods for these cases, aliens suffer great hardship when they do not receive a work permit. Unless the alien is engaged in egregious and purposeful delay, IJs should err on the side of keeping the Clock moving and of allowing asylum seekers to obtain their work permits.

2 – “Egalitarian” Master Calendar Hearings: Most IJs give priority to aliens who appear with an attorney at the Master Calendar Hearing. Of course, I am an attorney, and a somewhat impatient one at that, and so I do not like waiting around during a MCH. But there are more legitimate reasons for prioritizing represented respondents. First, respondents who are represented usually take less time during the MCH than unrepresented respondents. So more people will get done more quickly if represented aliens go first. Second, while most immigration lawyers do not charge by the hour, some do. Therefore, it is more expensive for some respondents to have their attorneys wait around for their turn at the MCH. Third, even those lawyers (like me) who do not charge by the hour might charge an extra fee for MCHs before IJs who are known to be slow (I have not done this, but I have considered it). If lawyers are more expensive, it is more difficult for aliens to retain us. Thus, when IJs do not have efficient MCHs, it potentially creates an access to justice issue for aliens.

1 – Showing the Proper Level of Respect: Notice, I did not say, “Showing Respect.” Sometimes IJs are not respectful enough to immigration lawyers; other times, they are too respectful to us lawyers. While I certainly believe that IJs should err on the side of being respectful to everyone in the courtroom, they do sometimes allow lawyers to get away with a bit too much. Oft times, alien respondents are not aware that their lawyers are unprepared or incompetent. When such behavior is egregious, IJs should point out the problem to the alien (and potentially to the bar association). Further, unprepared attorneys waste time at Master Calendar Hearings and cause delay for everyone else. There is no need for IJs to respect such behavior. On the other hand, some IJs run their courtrooms by bullying and demeaning attorneys (DHS attorneys and respondents’ attorneys). Obviously, this is inappropriate and, for the most part, ineffective. Good attorneys are sometimes unprepared, and sometimes make mistakes. It is harder for lawyers to do our best work when we face disrespectful comments at the slightest misstep. That said, while disrespectful IJ behavior can be a problem, it seems to me that such behavior is (fortunately) pretty rare.

Well, there you have it. While some IJs have bad habits (or so those nasty lawyers tell me), most IJs that I have encountered are hardworking, diligent, and fair. As we (hopefully) prepare for a major immigration reform, it is important to appreciate the positives about our immigration system and the legal protections we offer non-citizens. It is also important to appreciate the Judges and others who make that system work.

Continue reading

2 Comments

There Is No Such Thing as a Tough Immigration Judge

by Jason Dzubow

A recent article in the Sun Sentinel (Broward County, Florida) got me thinking about what it means to be a “tough” Immigration Judge.

Judge Ford, pictured here at his Senior Prom.
Judge Ford, pictured here at his Senior Prom.

The article discusses Judge Rex. J. Ford, who will be celebrating (if that is the right word) 20 years on the bench this April. According to the Sun Sentinel, “In 96 percent of the 2,057 proceedings Ford completed in fiscal 2011, he ordered the person removed from the country.” Judge Ford told the paper: “I follow the book and I don’t get reversed.” The article also notes that Judge Ford is a registered Republican who “garnered attention in 2008 with the release of a U.S. Justice Department report that named him as playing a role in recommending the appointment of immigration judges based on their political leanings.” Judge Ford denied that he considered party affiliation in advocating for specific job candidates.

First, I suppose the Sun Sentinel mentions that Judge Ford is a Republican because Republicans are considered “tougher” on immigration than Democrats (this, despite the fact that President Obama has deported record numbers of illegal immigrants during each year of his Administration). I can’t help but think that this is an unfortunate stereotype–at least to some extent. Maybe I will write a post about that subject in the future, but for now, I will just note that Judge Ford was appointed during the Clinton Administration. In this post, I am more interested in how we decide which IJs are “tough.”

The most objective measure of an IJ’s “toughness” is his asylum denial rate, which can be found at TRAC Immigration, a website affiliated with Syracuse University. The toughest Judges are the ones with the highest denial rates. By this measure, Judge Ford is pretty tough. Of the 256 IJs examined by TRAC, only three deported people at a higher rate than Judge Ford. Does this mean that he is tough? Or does it mean that he doesn’t know what he is doing? Or something else?

Whenever a judge’s denial rate deviates significantly from the mean, it raises a red flag. In Judge Ford’s case, his denial rate of 93.3% is much higher than the national average of 53.2%. But I think it is more important to compare his denial rate with the local average. Why? Because local factors significantly impact denial rates. In Judge Ford’s case, the aliens he sees are all detained. Denial rates for detained asylum seekers are much higher than rates for non-detained aliens. In part because such aliens are less likely to be represented by attorneys and have a more difficult time gathering evidence, but mostly (I think) because such aliens often have no valid defense to removal, and so they tend to file weak (or frivolous) asylum claims as a last-ditch attempt to remain in the United States. Also, many detained aliens are ineligible for asylum due to criminal convictions or the one-year asylum bar. Comparing Judge Ford to his local colleagues, his denial rate does not seem particularly unusual. The denial rate for other IJs at Miami’s Krome Detention Facility (where Judge Ford is listed on the TRAC website) is 89.8%. So while Judge Ford is probably not an “easy” judge, if he were relocated to a different court, with a non-detained docket, I bet that he would grant a lot more cases.

Speaking more generally, where an IJ with a non-detained docket denies asylum cases at a significantly higher level than his local colleagues, I don’t see that as a sign of “toughness.” I see it as a failure to properly apply the law. The INA, the CFR, and various precedent decision from the BIA and the federal courts provide guidance to IJs about how to make decisions. They set forth how to determine if an alien is credible (consistent testimony and submission of reasonably available evidence). They define “persecution,” nexus, and the different protected grounds. In reaching a decision, an IJ is obliged to follow these laws; he is not permitted to “go with his gut.” In my experience, most IJs do their best to follow the law. Therefore, if one IJ stands out in terms of her denial rate (whether it is too high or too low), something is wrong.

In deciding an asylum case, it is not the IJ’s job to be tough or easy; it is her job to analyze the facts in the context of the law. Where an IJ’s denial rate differs significantly from the local average, it may be a sign that the IJ is not following the law. In such a case, the IJ’s supervisors should determine what is happening and whether additional training or some other corrective action is necessary.

Continue reading

17 Comments