This post is by Mikayla Minton, a senior from Linfield University in McMinnville, Oregon. Ms. Minton is originally from Humboldt County, California and is majoring in Law, Rights, and Justice and minoring in Journalism and Media Studies. During the spring 2024 semester, she interned at Dzubow & Pilcher and attended American University. Ms. Minton plans on continuing her studies and passions in law school.
Last month, the Supreme Court ruled to allow a controversial immigration law to take effect in Texas. The ruling concerns Texas Senate Bill 4 (2023), known as SB4, which allows state officials to arrest and deport migrants who enter the state illegally. While the Court’s ruling involved a preliminary issue in the case, it telegraphed the Justices’ views on state–as opposed to federal–oversight of immigration.
Many conservative lawmakers in the Lone Star State and across the country see the Court’s decision as a win. Meanwhile, the Court’s liberal Justices as well as officials at the Department of Homeland Security described the possible effects of SB4 as “chaos.”
What is the significance of SB4 and of the Supreme Court’s ruling? How might it affect immigration law and states’ rights? And what impact will it have on immigrants? (more…)
To win asylum, an applicant must show that he faces persecution on account of his race, religion, nationality, political opinion or particular social group. But what do you do when you face harm not based on a characteristic that you actually have, but instead, based on a characteristic that the persecutor thinks you have? This is called an “imputed” characteristic, and it can be a powerful path to winning asylum. (more…)
Earlier this month, I participated in a panel discussion about the U.S. asylum system and my new book, The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity. The event was sponsored by Ayuda, and we raised over $1000 for that worthy organization. Panelists at the event included retired Immigration Judge Lisa Dornell, Ayuda’s Legal Director, Laurie Ball Cooper, and torture survivor and advocate Tensay Kelile. The event was held at Immigrant Food, a DC restaurant that celebrates immigrants and their contributions to our country. Special thanks to Peter Schechter of Immigrant Food, who hosted and moderated the panel.
At the event, we discuss the state of asylum in the U.S., and make some suggestions for how the Biden Administration can improve the system. We also hear from Tensay Kelile about his persecution in Ethiopia and about the years-long wait he has endured as an asylum seeker.
You can watch the event below, and you can donate to Ayuda here. Also, all profits from my book through the end of this month will go to Ayuda, so now is a great time time to buy a copy or three!
Please join me for a live event and fund raiser at Immigrant Food on September 9, 2021 at 6:00 PM in Washington, DC. The event is sponsored by Ayuda, a DC-area non-profit that assists immigrants and asylum seekers. Aside from yours truly, speakers will include Immigration Judge (retired) Lisa Dornell, Ayuda Legal Director Laurie Ball Cooper, and torture survivor and advocate Tensay Kalile.
We will discuss the state of the U.S. asylum system, including the Asylum Office and the Immigration Court, and how the Biden Administration can improve the asylum process. Of course, we will also discuss my new book, The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity. Given that this is a two-hour event, I am confident we will be able to solve most of the problems with the U.S. asylum system – so you won’t want to miss it!
Proceeds from food and book sales will benefit Ayuda. In additional, all royalties from the sale of my book online from today through September 15 will benefit Ayuda – so now is a great time to buy the book and benefit a very worthy organization. You can buy the book here. Below is more information about the event and the panelists (and by the way, the even will be held out doors, socially distanced). You can sign up to attend or donate here. The event will also be Live Streamed on Facebook.(more…)
According to a new report released by USCIS, asylum applicants are “highly satisfied” with the service they receive at the nation’s various Asylum Offices.
Asylum seekers who appeared for interviews at the different Asylum Offices answered the written survey. A total of 933 responses were collected from September 2011 through March 2012. Surveys were collected after the interview but before the final decision (for obvious reasons).
Asylum Officers celebrate the positive survey results.
According to the survey, customers are highly satisfied with the services they receive from USCIS’s Asylum Offices; their overall satisfaction index is 87 on a scale of 0 to 100. For comparison, the federal government satisfaction index is currently 67. At the office-level, customers who were serviced by the Miami Asylum Office, Chicago Asylum Office, and the Houston Asylum Office were the most satisfied with indices of 93 or 94. Conversely, satisfaction was the lowest for those serviced by the New York Asylum Office with a satisfaction index of 70.
Overall, 17% of respondents felt that the Asylum Officer was either argumentative or biased; at the New York office, 29% of respondents felt the officers were argumentative or biased. In LA, the next highest, the number was 23%.
With overall satisfaction at 87, the report opines that it may be difficult for USCIS to significantly improve its asylum office customer satisfaction scores at an aggregate level. However, the report notes, at certain locations there appears to be opportunity for improvement. Most significantly, in New York and Los Angeles, Asylum Officers should try to provide more information to applicants about the process. They should also try to appear less argumentative during interviews. According to the report, offices in Los Angeles, Newark, New York, and San Francisco should address wait times for the start of the interview.
The survey also contained a comments section. Most comments are very positive. A typical comment reads, “Everything was good.” Some of the more interesting comments include:
Cannot think of anything right now to improve the service, how do you improve on perfection?
Smile more.
No need to improve anything unless you decide to improve something.
My service overall was good with exception of the officer which directed my interview in a coercive and threatening manner.
Provide free coffee and donuts [I fully endorse this idea!].
The survey results (if not all the written comments) comport with my view of the Asylum Office. I find the officers to be very professional and courteous. They don’t always grant my cases (the nerve!), but in the large majority of cases, I find that they are fair and reasonable. Congratulations to the Asylum Officers on the survey results and on a job well done.
As millions of people around the globe were marking World Refugee Day on Sunday, UNHCR chief António Guterres called on the international community to do more for the forcibly displaced.
High Commissioner made his call during a press conference in Syria – broadcast on a live video link – where he met earlier in the day with President Bashar Assad and other top leaders. Syria hosts about 1 million mainly Iraqi refugees, according to the government.
“I appeal to the international community to do more to host refugees,” Guterres said just two days after the UN refugee agency announced that 100,000 Iraqi refugees have been referred for resettlement from the Middle East to third countries since 2007, a major milestone for one of the world’s largest refugee populations.
UN Secretary-General Ban Ki-moon, meanwhile, also made an appeal on behalf of refugees in a special World Refugee Day message. “Refugees have been deprived of their homes, but they must not be deprived of their futures,” he said, while calling for working with host governments to deliver services and for intensified efforts to resolve conflicts so that refugees can return home.
It’s been 17 years since the Golden Venture ran aground off New York. The Epoch Times remembers that fateful day in an interview with a Chinese fisherman who survived the ordeal, gained political asylum, and built a life for himself and his family in the United States:
“Jump! Jump! Hurry Up! Jump into the sea! You are in America. Or they will send you back to China,” a man shouted hastily. Hundreds of Chinese men and women jumped from a rusty freighter into the cold water, swimming, struggling, crying, and gasping.
Liu Ping
Ten people died as they struggled to swim to shore. After getting so close to the American dream, chased so painstakingly, they hit America’s shoreline at the end of their lives.
“The water was freezing and my body was weak. I didn’t know whether I could make it. I thought I was dying. I asked ‘God help me’,” recalled Liu Ping, 44, one of the survivors of 298 passengers on the Golden Venture that ran aground off New York at 2:00 a.m. on June 6, 1993.
Liu was one of the lucky survivors, and he was among the dozens who were granted asylum. Of the 298 people, 110 were deported to China, 53 were detained until 1997 when they were pardoned under a bill signed by President Clinton.
Now a permanent resident, Liu leads a peaceful and content life in Philadelphia with his wife and three children. Two of his children are U.S. born citizens. His other child was born in China and later became a naturalized American citizen. His wife, whom he married before coming to the U.S., also became a naturalized U.S. citizen.
A Survivor’s Story
He’ll never forgets how he made it – the Golden Venture experience.
Speaking with a thick Fujianese accent, Liu was emotional when recalling his 26-month journey from China to America. It was over land, mountains, across rivers, through a jungle, and finally over the ocean, using all possible method of travel imaginable.
The first words that he uttered on U.S. soil were “Thank you” to an American police officer.
The Contras fought communism and all President Reagan got was this lousy t-shirt
A Nicaraguan national in the 1980s had a much better chance (80 percent)of being granted asylum than a Salvadoran or Guatemalan national (5 percent). Critics blamed geopolitical biases for the disparate treatment. The INS’s hostility to Salvadoran and Guatemalan refugees, they argued, was attributable to the U.S. government’s coddling of right-wing regimes in those countries. Conversely, the INS’s receptivity to Nicaraguan refugees was related to the U.S. government’s animus toward that country’s left-wing regime.
The result was American Baptist Churches v. Thornburgh, a 1985 class-action suit against the INS brought on behalf of Salvadoran and Guatemalan refugees. The case was resolved with a 1991 settlement agreement (the “ABC agreement”) that stayed the deportation of eligible class members and granted them de novo INS asylum adjudications.
The Case of Erwin Tobar-Barrera
Erwin Tobar-Barrera, a Guatemalan national then awaiting deportation, registered for benefits under the ABC agreement. He was released from detention and his case was administratively closed as he awaited his de novoadjudication.
Tobar-Barrera’s case remained inactive for almost 16 years.
Then, in 2007, DHS notified him that he was ineligible for the ABC benefits he applied for in 1991. He was told that a 1986 conviction for manslaughter rendered him ineligible under the ABC agreement, which excludes “aggravated felons” from relief.
Tobar-Barrera was then ordered removed and taken into ICE custody. But his fortunes turned recently, when U.S. District Court Judge Richard Bennett held that USCIS was wrong in determining that he was an aggravated felon as defined under the ABC agreement. So it seems Tobar-Barrera will get that de novo asylum adjudication after all – two decades later.
Bennett’s memorandum opinion, which involved an interpretive issue of first impression in the Fourth Circuit, is discussed in more detail below.
Aggravated Felonies: They Ain’t What They Used to Be
To qualify for a de novo asylum adjudication under the ABC consent agreement, a Guatemalan class member: (1) must have applied for the de novo adjudication before 1992; and (2) must not have a conviction that classifies as an “aggravated felony.”
But the term “aggravated felony” refers to a broad (and ever-expanding) category of crimes, and what is considered an aggravated felony today was not necessarily considered an aggravated felony in 1991. Of particular consequence to Tobar-Barrera’s case is the fact that manslaughter was not considered an aggravated felony until passage of the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as Bennett’s decision noted:
[I]t is undisputed that when Tobar-Barrera registered for ABC benefits in 1991, his conviction did not constitute an aggravated felony under the INA. On the other hand, Tobar-Barrera’s conviction clearly fits the IIRIRA’s expanded definition of ‘aggravated felony.’ Therefore, the determinative issue in this case is whether the pre or post-IIRIRA definition … should be applied to Tobar-Barrera under the terms of the ABC agreement.
Which Definition of Aggravated Felony Applies?
The government argued that the definition for ‘aggravated felony’ should have been derived from the INA in its current form, as it has since been amended by the IIRIRA. Conversely, Tobar-Barrera argued that the definition of ‘aggravated felony’ set forth in the IIRIRA wasunconstitutionally retroactive as applied to him.
In deciding the case in Tobar-Barrera’s favor, Judge Bennett did not reach the constitutional question of retroactivity. Instead, he found that the issue could be resolved by interpreting the language of the ABC settlement agreement and the language of the IIRIRA.
A Contract Case: Interpreting the ABC Agreement
Judge Bennett began his reasoning by noting that “a consent judgment, though it is a judicial decree, is principally an agreement between the parties.” Therefore, “as is the case in interpreting contracts, a court must look to the plain meaning of the language used in the agreement when interpreting a consent decree.”
Because the case was decided by resort to contract principles, Judge Bennett adhered to the central goal of contract interpretation – to discern the intent of the parties to the contract – in determining whether the government and the class action litigants intended the definition of “aggravated felony” to take in later iterations of that definition.
The crucial provision in the ABC agreement was paragraph 2, which provides in pertinent part:
2. CLASS MEMBERS ELIGIBLE FOR DE NOVO ASYLUM ADJUDICATION. The following class members, if they have not been convicted of an aggravated felony as that term is defined in the [INA], as amended, will be afforded a de novo [adjudication] …
The government claim that the agreement contemplated subsequent revisions to the INA was based on the inclusion of the phrase “as amended” in paragraph 2, which, in their view, incorporated all subsequent revisions to the INA (including those revisions that made involuntary manslaughter an aggravated felony in 1996). Judge Bennett disagreed, writing:
However, this Court reaches the opposite conclusion and finds that “as amended” refers to the meaning of “aggravated felony” as it was defined by the INA in its amended form at the time the ABC agreement was executed. This interpretation is reinforced by the language in the same paragraph requiring that the de novo asylum regulations be conducted “under the regulations in effect on October 1, 1990.” The two phrases together support the view that the parties intended for asylum officers to apply — in all future asylum adjudications under the agreement — the definitions and procedures that existed at the time the consent decree was issued. If the parties intended to incorporate future revisions of the term, they could have included the phrases, “as may be amended hereafter” or “as amended from time to time.” The parties were well aware of how to incorporate by reference subsequent revisions to a term or law; such specific language was utilized in paragraph 18(e), which provides that “Applications for employment authorization . . . will be governed by the provisions of the regulations that became effective on October 1, 1990, or as subsequently amended.” (emphasis added).
Even If the Consent Agreement Contemplated IIRIRA’s Expansion, Applying IIRIRA to Tobar-Barrera’s Case Was Still Improper
“Even if this Court was to assume that paragraph 2 of the ABC agreement incorporated later definitions of ‘aggravated felony,’” Bennett wrote, “the USCIS’s application of [the] IIRIRA definition of aggravated felony to Tobar-Barrera’s case would still be improper.” He continued:
As noted above, § 321(a) of the IIRIRA expanded the definition of “aggravated felony” and § 321(b) unambiguously states that the definition refers to convictions predating the IIRIRA’s enactment in 1996. Nevertheless, subpart (c) of this section limits the definition, by stating that it may only apply after a certain effective date:
The meaning of this phrase “actions taken” was never explained by Congress and it is an interpretive issue of first impression in the Fourth Circuit. However, this Court is persuaded by the view espoused by the Sixth Circuit, as recently enunciated in Saqr v. Holder … holding that the post-IIRIRA definition did not apply because the relevant “action taken” occurred when Saqr’s removal proceedings were initiated. Because Saqr’s proceedings were initiated before the IIRIRA’s enactment in 1996, the pre-IIRIRA’s definition of “aggravated felony” applied to his case.
(c) EFFECTIVE DATE — The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act [September 30, 1996], regardless of when the conviction occurred. . . .
This Court concludes that because there was no “action taken” in Tobar-Barrera’s case after September 30, 1996, the post-IIRIRA definition of “aggravated felony” was improperly applied by the USCIS.
Conclusion and Remedy
Based on the foregoing, Judge Bennett entered a declaratory judgment in favor of Tobar-Barrera, finding that the USCIS failed to comply with paragraph 2 of the ABC agreement when it determined that he was ineligible for a de novo asylum adjudication. The Court invoked its “broad discretionary powers” to compel the government to provide Tobar-Barrera with a de novo asylum adjudication within 30 days. Judge Bennett stated that this equitable relief comported with the “special blend of what is necessary … fair … and workable” under the unique circumstances of the case, writing that “Tobar-Barrera has waited over nineteen years to receive the benefits he is owed under the ABC agreement.” (emphasis in original).
The Transactional Records Access Clearinghouse (TRAC) of Syracuse University recently received a fee request from USCIS for a whopping $111,930.00 for Freedom of Information Act expenses.
TRAC is a “data gathering, data research and data distribution organization” whose mission is to “provide the American people — and institutions of oversight such as Congress, news organizations, public interest groups, businesses, scholars and lawyers — with comprehensive information about staffing, spending, and enforcement activities of the federal government.” Indeed, TRAC’s website is the most comprehensive source for statistical data related to asylum cases and Immigration Judges.
On July 17, 2006, TRAC requested information related to naturalizations. Almost four years later, USCIS has responded, but not with any information. Instead, in a March 4, 2010 letter to TRAC, USCIS states that the FOIA request will require 861 man hours, billed at $130 per hour, for a total of $111,930.00. The agency has required a “deposit” of $55,965.00 before it will begin work on the request. The amount seems high give the Justice Department’s posted FOIA fees: “After the first 100 pages, a fee of $.10 per page is charged. Search fees are charged per quarter hour; $4.00 (clerical), $7.00 (professional/computer operator), and $10.25 (managerial).” The directors of TRAC filed a protest with USCIS in which they wrote:
We wish to remind you that on December 8, 2009, the White House issued an historic Open Government Directive, instructing the Executive Departments to take concrete steps to provide improved public access to public information…. It is striking that given this sweeping government openness directive, USCIS has chosen to move in precisely the opposite direction — placing an outrageous price tag on public access to information even about the databases the agency holds.
On his first full day in office, President Obama called on all government agencies to adopt a “presumption of disclosure” when administering the FOIA. A new report from the National Security Archive finds that the administration “has not conquered the challenge of communicating and enforcing that message throughout the Executive Branch.” If FOIA requests take 4+ years and cost more than $100,000.00, it appears that the open government initiative still has a way to go.
