Congress Addresses the Asylum Office Backlog

by Jason Dzubow

In April, I wrote about our efforts to lobby Congress for help with the affirmative asylum backlog. Those efforts have finally born some fruit. Last week, forty Democratic members of Congress wrote a letter to Alejandro Mayorkas, the Secretary of the Department of Homeland Security, and Ur Jaddou, the Director of USCIS.

In the letter, the Members of Congress express their concern about the affirmative asylum backlog, which currently stands at well over 400,000 cases. The letter notes that many people in the backlog have already suffered severe trauma in their home countries, and expresses particular concern for “those who have languished in the backlog for extended periods of time—some close to seven years.” Many of these applicants are separated from immediate family members and have not seen their spouses or children for years. 

Unless it passes a new law, Congress does not have the authority to order DHS or USCIS to take particular actions. However, this new letter is significant in that–for the first time–Congress is “recommending” certain actions by the agency to address the backlog. I imagine such recommendations must be taken seriously, given that Congress does ultimately control funding for DHS and, to a lesser extent, USCIS (USCIS is largely funded by user fees). Hopefully, the agencies will take a look at these recommendations and make some changes to help those who have been waiting the longest. The main recommendations are as follows– (more…)

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Reflections and Advice from a Recently-Retired Asylum Officer

by Jason Dzubow

This article is by Allen Schwartz, a former Asylum Officer who now offers consulting services to asylum seekers and attorneys. He may be reached at allen.schwartz@visaconsults.com or (305) 528-6474. Learn more about him at his website, www.visaconsults.com.

After a 23-year career as an Asylum Officer with INS/USCIS, I decided to retire in late 2019 and pursue my lifelong passions, such as travel and exploring this incredible world with its wide variety of people, cultures, and languages. I also planned on utilizing my extensive background in immigration, particularly asylum and refugee work, as a consultant. Little did I know or could have predicted that a few months after my retirement, the COVID-19 pandemic struck the world in unimaginable ways and turned “normal life” upside down. As a result of the pandemic, international borders were closed, embassies and consulates were shut down, travel was severely restricted, and immigration to the United States came to an almost virtual standstill.

COVID-19 has also dramatically reduced the number of affirmative asylum cases being scheduled and interviewed at our Asylum Offices here in the United States and the affirmative asylum backlog has continued to grow exponentially. Only recently have we seen that in-person asylum interviews are being scheduled again, albeit at a significantly reduced number.

Before COVID-19, each Asylum Officer was required to interview eight cases per week, a very daunting task. Currently, the number of interviews have been cut at least in half in most offices, since the Asylum Officer, the attorney/representative, and the applicant must be in separate rooms. A recent policy change requires that interpretation must be provided by a telephonic government-contracted translator during the interview. Prior to COVID-19, applicants were required to bring their own interpreter for the interview. The future for an accelerated and expansive interview schedule for affirmative asylum cases remains to be seen. While we wait, I have prepared a six-point “best advice” list for your review– (more…)

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Asylumist Panel Discussion on September 9, 2021

by Jason Dzubow

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…)

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Afghanistan Through My Clients’ Eyes

by Jason Dzubow

This week I attended an asylum interview for my Afghan client. He was a high-ranking government worker and a member of a secular political party. His daughters were educated and one of his sons was a diplomat. Because my client worked for the government and educated his daughters, he and his family became targets for the Taliban. They kidnapped and brutally murdered my client’s young son. They kidnapped a second son and held him for over two years, until he was finally freed during a military operation. That son has not been the same mentally or physically since his return. A third son was severely injured in a Taliban suicide bombing. In addition, a Taliban soldier beat up my client’s wife and repeatedly threatened my client and members of his family. During our practice session, my client’s wife sat nearby weeping as her husband recited their family’s story. As of this writing, my client has not been able to contact his adult daughters in Afghanistan, and he fears they could be subject to forced Taliban marriages or worse.

The Taliban takeover of Afghanistan happened more quickly than anyone predicted, but perhaps this result was inevitable. Or perhaps not. As we hear from all the Monday-morning quarterbacks about what should have happened, I notice that the voices of one important group are largely missing–the Afghan people themselves. We heard little or nothing from them when we invaded Afghanistan in 2001, as we shifted strategies and generals over the intervening years and decades, and during the draw-down that has been on-going for I-don’t-know-how-long. Why is it that we seem never to hear from the Afghan people? (more…)

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Ten Suggestions for the New USCIS Director, Ur Jaddou

by Jason Dzubow

USCIS has a new Director. Ur Mendoza Jaddou is the daughter of a Mexican immigrant and an Iraqi immigrant. She started her career on Capitol Hill working for pro-immigrant Congresswoman (and former immigration attorney) Zoe Lofgren, and later served in the Department of Homeland Security during the Obama Administration. Ms. Jaddou spent her Trump-Administration exile as a law professor at American University. Earlier this year, President Biden nominated her to direct USCIS. The Senate confirmed her nomination on July 30, 2021 and she assumed the directorship last week.

In her first news release, Director Jaddou states–

As a proud American and a daughter of immigrants, I am deeply humbled and honored to return to USCIS as director. I look forward to leading a team of dedicated public servants committed to honoring the aspirations of people like my parents and millions of others who are proud to choose this country as their own. USCIS embodies America’s welcoming spirit as a land of opportunity for all and a place where possibilities are realized.

Since January, USCIS has taken immediate steps to reduce barriers to legal immigration, increase accessibility for immigration benefits, and reinvigorate the size and scope of humanitarian relief. As USCIS director, I will work each and every day to ensure our nation’s legal immigration system is managed in a way that honors our heritage as a nation of welcome and as a beacon of hope to the world; reducing unnecessary barriers and supporting our agency’s modernization. (more…)

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“Expedited Removal” and “Fair Processing of Asylum Applications” Cannot Coexist

by Jason Dzubow

Last week, the Biden Administration released its Blueprint for a Fair, Orderly, and Humane Immigration System. The Blueprint contains a number of components. Here, we will discuss two: Expedited Removal and “fairness of the U.S. asylum system.” Despite the Administration’s good intentions, I fear that we cannot have it both ways. Either we have a system to remove new arrivals expeditiously or we have a system to fairly adjudicate asylum applications at the border. We cannot have both.

Let’s start with some numbers. The crisis at the Southern border seems to be perpetually getting worse. In June 2021 (the most recent month where data is available), “CBP encountered 188,829 persons attempting entry along the Southwest Border.” “This total represented a five percent increase over May 2021.” More than a third of these would-be migrants had made a prior attempt to enter the U.S., and so if you look only at “unique new encounters,” the numbers are slightly lower for 2021 than they were for 2019. Perhaps that’s good news (since repeat customers can be dealt with more quickly than new arrivals), or maybe its bad news (since migrants are not being deterred from repeated attempts to illegally enter the U.S.). The majority of those who arrive at the border are expelled under a public health directive related to the pandemic (in June 2021, 103,014 people were refused entry under this directive). More significantly for our purposes, during June 2021, there were 10,003 credible and reasonable fear cases recorded at the border. These are initial claims for asylum by arriving noncitizens. Of these, 4,464 people “passed” their credible or reasonable fear interviews and will presumably be permitted to apply for asylum before an Immigration Judge–at an expedited removal hearing. (more…)

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Meet the Olympic Refugee Team

by Jason Dzubow

In the world today, there are about 82.4 million people who have been forcibly displaced from their homes. If these people could form their own country, it would be the 20th most populous nation on Earth (about the same size as Germany). Confronted with this problem, the International Olympic Committee created a Refugee Team, which first competed in 2016 in Rio de Janeiro. The current Games is the second summer Olympics for the Refugee Team, which consists of 29 athletes, representing 11 countries.

Each of these athletes has overcome tremendous odds. Many have suffered severe trauma. Despite these obstacles, they have excelled in their respective sports and have reached the Olympics. You can learn more about all 29 of these amazing athletes at the IOC website, and below, I’ve selected a few of their biographies to give you a sense of the team. (more…)

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Immigration Songs

by Jason Dzubow

It’s summer and I’m feeling lazy. So instead of a regular post, I thought I’d share a few of my favorite songs related to asylum and/or immigration. 

This first song involves one of my favorite musical groups of all time, the Clancy Brothers. The song is based on some letters discovered in a house in Washington, DC. It’s about an immigrant from Ireland to the U.S. in the Nineteenth Century. Warning: This is one of the saddest and most sentimental songs I know (but you have to pay attention to the words): (more…)

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Chaos in Court

by Jason Dzubow

A few months ago, I wrote that what applicants and lawyers need from the Biden Administration is predictability. Unless we know what to expect from “the system” and when to expect it, people cannot properly prepare their cases or have them fairly adjudicated. Unfortunately, what we have been seeing recently is the opposite of predictability–it is chaos, at least at the Executive Office for Immigration Review (EOIR – the agency that oversees our nation’s Immigration Courts). Here, I will offer a few pieces of evidence in support of this proposition–

Exhibit A: The Immigration Court (or lack thereof) in York, PA

The Immigration Court in York, PA is located inside the York County Prison, which houses ICE detainees. After recent negotiations between the feds and the county failed to produce an agreement, ICE announced that all its detainees would be transferred to other facilities by August 12. With immigrant detainees set to leave York, EOIR informed court staff on June 30 that the Immigration Court would close by late July, and that all staff needed to take assignments at other courts (often in distant locations) or find new jobs. Besides being disruptive and demoralizing for EOIR staff (many of whom have been working in York for years, and have their homes and families there), the abrupt decision to close the court has left noncitizen detainees isolated from their families and their lawyers, and will make preparing their cases even more difficult. (more…)

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The Art of Denying Asylum

by Jason Dzubow

Preparing an asylum case is a bit like building a fortress. You make the walls as strong as you can, re-enforce weak points, and hope for the best. It’s the job of the Asylum Officer, the DHS attorney (the prosecutor), and the Immigration Judge to probe for weaknesses and, where appropriate, break down the defenses. If they succeed, you lose your case. So here’s my theory: An adjudicator who wants to deny asylum can deny asylum. Some cases may be harder to deny than others, but a smart decision-maker can punch holes in even the strongest and most well-prepared asylum case.

In my own practice, I recently lost a case where the Immigration Judge meticulously deconstructed the asylum claim in order to deny relief. This was one of those cases that some IJs would have granted, and others would have denied. It so happens that our IJ has a 93.5% asylum denial rate, and so the odds of success were always pretty slim. But the decision got me thinking about how judges and Asylum Officers decide cases, and about whether I can do more to prevent future losses. (more…)

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Back to Bad

by Jason Dzubow

Last week, Attorney General Merrick Garland issued two decisions reversing Trump-era cases that limited asylum eligibility. Here, we’ll discuss those cases and how the AG’s decision will affect asylum seekers.

The first case, Matter of A-B-, 28 I&N 307 (AG 2021), involves asylum for victims of domestic violence. There is a long history here, but the basic story is that victims of domestic violence have traditionally had a hard time qualifying for asylum. Through a series of cases between 2004 and 2014, the government created a (convoluted) path for victims of DV to receive asylum by classifying them as a “particular social group” (to qualify for asylum, an applicant must show that the feared harm is “on account of” race, religion, nationality, political opinion or particular social group). While this was an important step for DV asylum seekers, presenting a successful case was still very difficult, especially for people without a lawyer (probably the majority of applicants). The Trump Administration re-visited DV asylum starting in 2018, and essentially erased the gains made during the prior decade and a half. Now, the pendulum has swung once again, and the Biden Administration has reversed the Trump-era reversal. In other words, we are back to the not-so-great place where we were in 2017. This means that victims of domestic violence can once again obtain asylum, assuming they can satisfy the narrow definition created prior to President Trump. (more…)

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Join Me for an Online Conference about the U.S. Asylum Crisis and What You Can Do About It

by Jason Dzubow

The Torture Abolition and Survivors Support Coalition (TASSC) International will hold its annual conference and advocacy days from June 23 to 26, 2021. The theme of this year’s conference is “The Asylum Crisis in the USA.” This is a great opportunity to learn about the challenges facing the U.S. asylum system–and to do something about it. All events (including advocacy) will be held online and are free. In support of the conference and its goals, from today until June 30, all proceeds from my new book, The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity, will go to TASSC International!

TASSC is an amazing organization consisting of torture survivors and asylum seekers who help and support each other. Speakers at the event will include torture survivors, advocates, mental health professionals, and lawyers (including yours truly–on June 23rd at 11:30 AM).

The first day of the conference features a number of important topics, including a discussion about the asylum system’s failures and challenges, survivor resilience, and advocating for a humane asylum system. There will also be a training for people participating in the advocacy days (on June 24 and 25). (more…)

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The Return of Prosecutorial Discretion

by Jason Dzubow

The Trump Administration’s onslaught of anti-immigrant rule-making, combined with increased enforcement, pushed the Immigration Court backlog to new heights–there are currently more than 1.3 million noncitizens in removal proceedings.

When Joe Biden came into office, we were hoping his Administration would move quickly to un-do the damage caused by his predecessor, and to issue new, badly-needed administrative (and hopefully legislative) changes. To be fair, there have been some changes, especially to the more high-profile Trump-era policies such as the Muslim travel ban and the Migrant Protection Protocols. Progress in other areas has been slower, but now–after more than four months of deliberation–we have a new DHS memo on prosecutorial discretion.

The purpose of the memo is to guide DHS/ICE attorneys (the prosecutors in Immigration Court) about their enforcement priorities, i.e., who should and should not be a priority for deportation. The ability of prosecutors to make these decisions is important, since there are not enough resources to deport everyone, and DHS needs to decide where to focus its efforts. The new memo sets forth how DHS attorneys should exercise their “prosecutorial discretion” or “PD.”

(more…)

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Dealing with Delayed Decisions

by Jason Dzubow

Based on the latest data (from July 2020), there are more than 22,000 asylum cases that have been interviewed, but where the Asylum Office has not yet issued a decision. Some of these cases have been pending decisions for months or even years. What’s the reason for this post-interview delay, and what can you do if you were interviewed, but have not received a decision?

First, let’s talk about some reasons for delayed decisions. One common reasons is the security background check. Before a case can be granted, each applicant is subject to a background check. This somewhat mysterious process involves reviewing multiple government databases to determine whether there are any “hits,” meaning that the person’s name or information raises a security concern. Such checks are largely outside the control of the Asylum Office, and can cause significant delay. At least in my experience, the delay tends to be worse for people (especially men) from majority Muslim countries. While background check delays are common for Asylum Office cases, they are almost non-existent for Immigration Court cases. Why this should be, I do not know. I once asked a prior Asylum Division Director about the discrepancy, and the only explanation I received was that the background checks are different at the two different agencies.

Another reason for delay is that each case needs to be reviewed by a supervisor, and the Asylum Offices are apparently short of supervisors. Related to this is the high turnover rate for Asylum Officers. When officers leave without completing a case, this seems to cause additional delay (since another officer has to review the case, get up to speed, and then complete the work). (more…)

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Praise for the Asylumist (the Book)

by Jason Dzubow

We’ll return to our regularly-scheduled content next week, but here, I wanted to share some (mostly) positive reviews I’ve received for my new book, The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity. Proceeds from the book will benefit asylum-related charities, and you can purchase copies here. Without further ado–

Jason Dzubow is a leader in the new due process army and part of the “gold standard” for practicing asylum aficionados. For over ten years, his blog “The Asylumist” has been providing “practice tips” and sage advice for asylum seekers, attorneys, and even Immigration Judges. Now, in his new book, Jason collects “The Asylumist’s Greatest Hits”—his best and most useful blog posts—and updates them to reflect the current state (or dystopia) of the law. Understanding the process is essential for protecting your rights! The Asylumist: How to Seek Asylum in the United States and Keep Your Sanity provides clear, accessible, practical, useful guidance, with a touch of humor, to help you navigate the asylum system. It’s an essential “problem-solving tool” for asylum applicants, attorneys, policy makers, and anyone interested in ensuring that asylum seekers obtain the protection that they need and deserve and in restoring due process and best practices to our now sadly and badly broken, dysfunctional, and intentionally unfair asylum system. Due Process Forever!  —  Paul Wickham Schmidt, Former Chair, Board of Immigration Appeals, and blogger at ImmigrationCourtside.com

Jason Dzubow is a thoughtful and balanced voice in the often highly charged world of immigration. He cares deeply about the law and the people it impacts, from those seeking refuge to those tasked with administering the processes for delivering both relief and justice. In his new book, The Asylumist: How to Seek Asylum and Keep Your Sanity, he offers pragmatic advice and valuable insights on asylum and many other issues in the immigration arena.  —  MaryBeth Keller, Former Chief Immigration Judge of the United States

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