The key to winning an asylum case in Immigration Court is preparation. I’d venture that the majority of asylum cases are won or lost before the applicant arrives in court for the final hearing. If the case and the applicant are well prepared, the chances for success are greatly improved. If the case and the applicant are not well prepared, the likelihood of winning is much reduced. So how do you prepare for an asylum hearing in Immigration Court?
First, you have to determine whether you are eligible for any relief. If you fear return to your country on account of your race, religion, nationality, political opinion or particular social group, you may be eligible for asylum or Withholding of Removal. If you fear torture, you could be eligible for relief under the United Nations Convention Against Torture. Besides these types of humanitarian protection, there are a number of other applications that might help you avoid deportation: Cancellation of Removal, adjustment of status based on a family relationship or a job, a T or U visa for certain victims of crimes, the semi-mythical S visa for certain cooperating witnesses, the Special Immigrant Juvenile visa, to name the most common. How do you know what relief you might be eligible for? Your best bet is to talk to a lawyer, but you can also do your own research.
Pear
Assuming you qualify for relief, you normally have to inform the Immigration Judge and submit all necessary forms at the Master Calendar Hearing (“MCH”). In many cases, if you do not submit all applications for relief in advance of the Individual Hearing, you forfeit those opportunities for relief. Be aware that some applications for relief require a fee (asylum does not require a fee), and so make sure to pay the fee well in advance of the Individual Hearing.
As the Individual Hearing approaches, you need to file all the necessary documents with the Immigration Court. This includes all evidence, a witness list, and a legal brief. The documents must be filed on time. The default rule (from the Immigration Court Practice Manual) is that evidence should be filed at least 15 days prior to the Individual Hearing, but some Judges have their own rules and require documents earlier than that (the Judge should inform you about this at the MCH). One copy of the evidence goes to the Court and one copy goes to the local Office of the Principal Legal Advisor (the prosecutor).
The evidence normally consists of the I-589 asylum form (and/or forms for any other applications for relief), an affidavit, and supporting documents. Any documents not in English must be properly translated. You can read more about what evidence is helpful here.
Courts also require a witness list, which is a list of people who will come to Court to provide testimony in your case. Anyone who plans to appear as a witness must provide a letter indicating what they know about your situation. There are benefits and risks to any witness, and you need to think carefully about whether a particular witness will be helpful for your case (and of course, if you have a lawyer, the lawyer should explore this with you). All witnesses need to be prepared for their testimony, just as the applicant herself needs to be prepared (see below).
Also, for most cases, it is a good idea to submit a brief detailing the legal theory of the case. This is especially important where the case involves a particular social group or PSG (the BIA requires applicants to specifically articulate any PSG). Even in cases where PSG is not an issue, it is important to explain the legal posture of the case and any issues that may be relevant (one year filing bar, nexus, persecutor bar, firm resettlement, criminal issues, etc.).
In addition, if your case was referred to Court by the Asylum Office, you should think about why. Are there inconsistencies or errors that need to be addressed? Maybe this requires a new affidavit or additional evidence. Did you fail to show that you suffered past persecution or that you have a well-founded fear of future persecution? Maybe you need more evidence or a stronger legal argument. While the Immigration Judge reviews the case de novo (meaning, the IJ makes her own decision), remember that the Asylum Officer’s notes can be admitted to impeach your credibility. As you prepare for Court, you should think about what was said and submitted at the Asylum Interview, and determine whether that requires any additional evidence or testimony.
Pre-Pear
Before the Individual Hearing, make sure you and any of your dependents have completed their biometrics (fingerprints) appointment. If your case has been referred from the Asylum Office, this will already have been done (assuming you showed up for your biometrics appointment prior to your asylum interview). If not, you can request a biometrics appointment. This is important, and if you forget to do it (which is easy), it could result in the case being delayed or denied.
As the Court date approaches, it is important to practice for the hearing. How do you want to present your case? What questions might be asked of you? What are the weak points in the case and how will you discuss those? It is very important to think about these issues in advance. Judges and Trial Attorneys are good at finding the weaknesses in a case and asking about them, and failure to prepare ahead of time may result in the case being denied. In our office, we do two practice sessions with the client – the first about a week before the trial and the second a day or two before (this practice session is an much for the attorney’s benefit as the client’s).
Finally, prior to the hearing, it is a good idea to talk to the DHS Attorney (normally, your lawyer does this). It is not always easy to reach these attorneys, and they often do not return calls. However, at the beginning of the hearing, it is common for the Judge to ask whether the parties have talked, and so it is helpful to at least have tried to communicate with the government lawyer. Assuming you can talk to the lawyer in advance, you can potentially narrow the issues and have a better sense of what to expect at the hearing.
So that’s about it for preparation. In a future post, I will discuss what happens at the Individual Hearing.
Moving to another country can be challenging and confusing. Navigating that new country’s legal system can be downright maddening. As an asylum attorney, I’ve observed my clients’ behavior in Immigration Court, the Asylum Office, and during USCIS interviews, and I’ve accumulated a list of do’s and don’ts (mostly don’ts) for interacting with immigration officials. So, in no particular order, here’s what to do and not do, when you appear for your hearing or interview–
Do turn off your cell phone (don’t put it on “silent” or “vibrate” – turn it off)
Do dress respectfully
Do not wear a hat (unless it is religious garb, like a hijab or kippah)
Do not engage in fake emotional outbursts, like crying or screaming uncontrollably – it is not culturally appropriate in American, and it will potentially make the decision-maker uncomfortable, embarrassed or angry (you can express your emotions – just don’t be fake)
Don’t wear perfume or cologne
Do do these do’s or you’ll be due for deep doo doo (times deux).
Don’t answer a question when you do not know the answer – Don’t guess!
Do take a bath beforehand
Don’t tell the decision-maker that she is good-looking, smart, professional, well-dressed, brilliant, funny, Christ-like or anything else that resembles kissing her ass – this will probably only aggravate and/or creep out the person you are trying to flatter
Do tell the truth
Don’t cry and beg for a good decision
Do turn off your cell phone (I mean it!)
Do use the bathroom before your interview or hearing, so you do not have to interrupt proceedings to run to the potty
Do not lose your temper with or be disrespectful to the Immigration Judge, DHS attorney, Asylum Officer, interpreter, clerk, security guard or anyone else involved in the process
Do not chew gum (or tobacco, toothpicks or anything else)
Don’t bring small children to the court or the interview unless they are required to be present
Do bring all your original documents with you (all passports, birth certificates, marriage certificates, divorce documents, school and work records, military records, medical documents, death certificates, police reports, ID cards, photos, witnesses letters, etc. – in short, if you submitted a copy of it, bring the original if you have it)
Do show up on time (or better yet, show up early)
Don’t answer questions that you do not understand (just say, “Sorry, I do not understand the question”)
Don’t take advice from friends or family members if they do not know what they are talking about
Do be friendly and make eye contact
Don’t avoid responsibility for bad things you did, such as criminal conduct or prior misrepresentations – if you take responsibility, express remorse, apologize, explain how you have changed, and show that you will not repeat the bad behavior, you are most likely to overcome the problem (of course, if you have a criminal or misrepresentation issue, you should talk to a lawyer for guidance)
Do get a good night sleep beforehand (even though this can be difficult)
Do listen carefully and respond to the question that is asked; not to the question that you wanted them to ask
Do not try to avoid the questions or change the subject
Don’t interrupt other people, especially Judges, Trial Attorneys, and Asylum Officers
Don’t get flustered – if you are losing your cool, take a breath, or ask for a moment to compose yourself
Don’t leave your cell phone on – shut it off! (did I already mention this?)
Do stand up when the Judge enters the courtroom
Do not repeat the entire oath after the Judge or Asylum Officer asks whether you swear or affirm to tell the truth – just say, “I do” or “yes”
Do speak slowly and clearly, and, if you are using an interpreter, break up long answers into shorter bits so the interpreter can accurately translate everything you say
Do not bring weapons or other prohibited items to the courtroom or Asylum Office
Do not roll your eyes or use other disrespectful body language
Do answer questions verbally – you cannot nod your head for “yes” or “no”
Do sit up straight
Do not plead “Not guilty!” at the Master Calendar Hearing
Do think before you speak – Why are you being asked this question? What might the questioner have in mind?
Don’t answer a question in court if your attorney objects to that question – let the Judge make a decision on the objection. Depending on how the Judge rules, you may not be required to answer the question
Do not forget where you are and get too comfortable/familiar – remember, you are being judged (literally)
Do not use curse words or rude language, unless it is part of the story you are telling
Do not refer to the Immigration Judge as “Your Lordship,” “Your Majesty,” “Your Highness,” “Oh Great One,” “Your Holiness,” “He Who Must Not Be Named,” or any other unusual sobriquet – in the U.S., we say “Your Honor”
Do not refer to the Asylum Officer by any weird sobriquets either – you can call the officer “Officer” or “Sir” or “Ma’am”
Do review your case before any hearing, and think in advance about how to respond to difficult questions
And most important of all, Do pay your lawyer (especially if you are my client!)
So that’s about it. This list is not comprehensive, of course, and so if you have any suggestions, please let us know. And in case I forgot to mention it: Turn off your cell phone!
USCIS recently modified the form I-765, Application for Employment Authorization. The new form, question 30, requires asylum seekers to disclose whether they “have… EVER been arrested for and/or convicted of any crime.” What is the purpose of this question? What if you have been arrested or convicted of a crime? Can you still get an Employment Authorization Document (“EAD”)?
First, this question applies to asylum seekers, whose EAD is based on category c-8. People with asylum, and most others, are not asked about their arrest history when they request an EAD.
Under 8 C.F.R. § 208.7(a)(1), “an applicant for asylum who is not an aggravated felon shall be eligible” for an EAD. This clearly refers to people who have been convicted of an “aggravated felony,” but it presumably also refers to people who admit to having committed an aggravated felony, even if they have not been convicted. The purpose of the question, then, is to determine whether you are an “aggravated felon” (convicted or not) and if so, to deny you an EAD.
So what is an aggravated felony? The term is defined in INA § 101(a)(43), which lists all sorts of crimes that are aggravated felonies. Some of the behavior is quite bad (murder, rape); other behavior seems less severe (passing a bad check, certain illegal gambling offenses). In some cases, a conviction is required. For example, a “theft offense” is an aggravated felony only if the term of imprisonment is at least one year. In other cases, a conviction is not required: If you committed the bad act, you are an aggravated felon.
Even criminals need to work.
On first glance, then, it may seem easy to determine whether someone is an aggravated felon: Just compare the person’s offense with the crimes listed in INA § 101(a)(43). Unfortunately, things are not nearly so simple. Indeed, there is a whole sub-specialty of law–dubbed with the clever portmanteau “Crimmigration”–devoted to analyzing how a criminal offense interacts with the immigration law. The problem is compounded by the fact that criminal laws vary significantly by state and by country, and that we have precious little guidance from the Board of Immigration Appeals or the federal courts. In short, the analysis of whether a particular crime is an aggravated felony can be very complicated and often involves more guess work than seems appropriate for a country where the rule of law is (supposedly) paramount. According to the I-765 instructions, “USCIS will make the determination as to whether your convictions meet the definition of aggravated felony.” Given the complexity of the analysis in some cases, my guess is that USCIS will not always get it right.
All this means that any person who checks the “yes” box for question 30 should be prepared for trouble. Depending on the situation, that trouble could range from delay to outright denial of the EAD.
Who needs to check “yes” for question 30? According to the form itself, you must check “yes” if you were arrested for, or convicted of, any crime (according to the instructions, p. 8, “minor” traffic offenses do not require you to check “yes,” but more serious offenses, including alcohol- or drug-related offenses require a “yes”). What if you were arrested, but it was not for a crime? As I read the form, you could get away with checking “no”. However, the I-765 instructions are a bit different. They read, “For initial and renewal applications, you are required to submit evidence of any arrests and/or convictions.” Thus, even if you were arrested for a political reason (i.e., not a crime), you would have to check “yes”. How to resolve the conflict between the form and the instructions? I do not know. For my clients, I would probably check “no” if the arrest was not for a crime, but I would circle the question on the form and write “see cover letter.” I would then provide an explanation in the cover letter. I would also provide some evidence about the arrest. My concern is that USCIS will accuse the client of lying about an arrest (for a crime or otherwise) and that this would create problems down the line. By providing an explanation, I am trying to protect the client from this danger.
So what happens if you must check “yes” on the I-765 form? First, you will need to get some evidence of the arrest. For a criminal arrest (especially in the U.S.), this would normally consist of the arrest record and the court disposition (the final outcome of the case). Court documents should be certified by the clerk. To get such documents in this country, you would normally contact the court where the case was heard, and ask the clerk for a certified copy of the case. Obtaining such records from overseas will likely be more challenging.
What about for political arrests? USCIS does not provide guidance here, but presumably, you have to get what you can: Court and police documents, lawyer documents, letters from witnesses. Sometimes, people are arrested for a crime, but the arrest is politically motivated. How USCIS will handle such cases, we do not know. But if this is your situation, you would want as much evidence as possible to show that the arrest was pretextual. Maybe letters from people familiar with the case, country condition information (explaining, for example, that the government falsely charges political opponents with crimes) or expert reports would help.
What if the police stopped you, but did not actually arrest you? What about an illegal detention where you were not charged with any crime? Again, it is unclear what to do. Depending on the situation, you could potentially answer “no” to question 30, but I think you need to be careful, as you do not want to be accused later of failing to disclose an arrest. Provide an explanation, and talk to a lawyer if you need help.
Even where a person has an arrest or conviction that is not an aggravated felony, USCIS could potentially deny the EAD. The I-765 instructions note, “USCIS may, in its discretion, deny your application if you have been arrested and/or convicted of any crime.” Thus, even if your arrest or conviction (or admission of a crime) is not an aggravated felony, USCIS could deny the EAD. Presumably, this denial would be based on the discretionary language of INA 208(d)(2) (“An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General”). This language is somewhat in conflict with the implementing regulation, 8 C.F.R. § 208.7(a)(1), which states that “an applicant for asylum who is not an aggravated felon shall be eligible” for an EAD. How this conflict would ever play out in a lawsuit, I do not know, but my guess is that if USCIS denies an EAD as a matter of discretion, it will be difficult to reverse that decision.
Finally, what if you are denied an EAD due to an arrest or conviction? Potentially, this is a decision that can be appealed (using form I-290B). However, a discretionary denial is unlikely to be reversed (since USCIS has discretion to do as it pleases, within limits), and given the complicated legal analysis associated with some aggravated felony determinations, an appeal of that issue might be difficult (and would likely require help from a lawyer). Given that an appeal is expensive (a whopping $675.00 for the DHS fee), it probably makes sense to consult with a lawyer about whether there is any chance for success.
The big question in my mind is how USCIS will implement this change. What will they do with political arrests? Will they deny EADs for small matters, in the exercise of discretion? For people with arrests, will the EAD be delayed, and for how long? All this remains to be seen. For people with any sort of arrest, I do think it will be important to get court records and certified dispositions (final results) for all arrests. I also think it would be important to present a legal argument in cases where the EAD could be denied as an aggravated felony or as a matter of discretion. In short, if you have to check “yes” on question 30, it is probably best to consult with an attorney to help you present your application for an EAD. This is an unfortunate expense for asylum seekers, who are probably already overburdened, but if you need a work permit, it is probably money well spent.
A poet once said, “It’s not how you feel; it’s how you look. And you look mah-velous!”
What does this gentle wisdom have to do with asylum cases? Simply this: Whether you have a strong case or a weak case, if you present your case in an organized and neat fashion (i.e., if you make it look marvelous), you are more likely to be granted relief.
How do I know this is true? I really don’t. I just made it up. But it seems true. Plus, I have talked to Asylum Officers and Immigration Judges, and I know they sometimes become frustrated with disorganized applications. Also, it makes sense–if you make the decider’s job easier, you are more apt to get a good decision. So how should an asylum application look?
Yours truly, several years before being voted “Best Looking Asylum Lawyer in Washington, DC.”
The first thing to know is that there are different rules for the Asylum Office and the Immigration Court. The Asylum Office rules are more lenient. When we prepare evidence for the Asylum Office, we basically follow the Immigration Court rules. In this way, we are prepared in the event that the case goes to Court. Also, the Court rules provide good guidance for how to organize a packet of documents.
First, let’s talk about Asylum Office cases. For such cases, we include a cover letter. This letter is short, and simply explains what type of application we are filing. If there are any issues of particular note, we might mention those in the cover letter–for example a one year bar issue, a criminal conviction or a prior asylum application.
Next, we include the packet of documents. We do not send any original documents; we submit copies (we have the client bring any originals to the interview). We also keep a copy of the entire packet for ourselves. Per Asylum Office rules, we submit two copies of the entire packet of documents. Each page of the packet is numbered. I put the numbers in the bottom center of each piece of paper. Also, each individual exhibit is labeled with a letter (Exhibit A, Exhibit B, etc.). In front of each exhibit is a separate page with a tab (A, B, C, etc.). If the packet of exhibits is tabbed and paginated, it is easy for the officer to find what she needs.
On top of the packet of exhibits, we include an index. The index lists each exhibit by letter and page number. I also include a brief description of each exhibit, so that the officer can read my summary, rather than a (sometimes) lengthy document. An abridged example of how we do the index is here: Example Index
The exhibits we typically submit, aside from the original I-589 form, include copies of: All passports, the applicant’s affidavit, birth certificate, marriage certificate(s), divorce documents, national ID cards, identity documents for spouse and children (passports, birth certificates, national ID cards), education documents (diplomas, transcripts, awards), employment documents, any criminal or arrest documents (from the U.S. or overseas), police reports, medical reports (including forensics reports about scars or psychological trauma), membership documents for political, religious or other organizations, letters from witnesses, threat letters or evidence of threats, relevant photos (of political activities, injuries, etc.), relevant news articles, and country and human rights reports. Any documents not in English need to be translated with a certificate of translation. Of course, the documents we submit vary, depending on the case and what we need to prove. But the format is always the same.
Also, it is a good idea to submit the exhibits on time. These days, under LIFO, we usually complete the entire case and submit everything together with the I-589 application (since we often-times receive a quick interview date). However, if you are submitting documents after the case has already been filed, make sure your Alien number is on the cover page and the index, and make sure everything is submitted on time. Some asylum offices want your exhibits at least one week prior to the interview. You can contact the local asylum office to ask about the filing rules.
If you have a case in Immigration Court, the rules are more strict. First of all, you need to submit one copy of everything to the Court and one copy to the DHS Office of the Chief Counsel (the prosecutor). Second, you need to follow the rules related format, which you can find in the Immigration Court Practice Manual (follow the link called “OCIJ Practice Manuel;” chapter 3 and appendices F and G are particularly useful for format). Also, you need to submit a witness list (check chapter 3 of the Practice Manuel, page 57-58). The list of exhibits will look similar to what I described above for the Asylum Office index. For non-lawyers, this is all a bit much, and for this reason, if you have a case before the Immigration Court, you would do well to find an attorney to assist you (if you cannot afford a lawyer, you might be able to find one for free).
One last tip: If possible, submit all documents by hand (and bring your copy of the exhibits so the Asylum Office or Court can stamp it with a proof of service) or by certified mail. It is common for evidence to get lost, and so it is a good idea to have proof that you submitted the evidence.
Whether your case is before the Asylum Office or the Immigration Court, it will benefit you to submit a neat, well-organized packet of evidence. And by the way, darling, you look mah-velous!
This is part 2 of a posting about what happens if the Asylum Office denies your affirmative application. Read part 1 here.
The view from the Judge’s seat in Immigration Court.
If the Asylum Office denies your asylum case and you are no longer “in status,” you will be referred to an Immigration Court. When you get the denial (which they politely call a Referral), it will contain a short letter with a (usually) boilerplate explanation about why the case was not granted. Along with the letter, you will receive a Notice to Appear (“NTA”), which explains why the U.S. government believes it can deport you. If you have dependent family members, each of them should also receive an NTA (assuming they are all out of status).
The NTA contains allegations and charges. The allegations usually begin, “(1) You are not a citizen or national of the United States; (2) You are a citizen and national of [your country]; (3) You entered the United States on [date and place],” and then they state why you are removable. Often, the alien is removable because she remained in the United States longer than permitted. Other times, the alien entered the U.S. unlawfully (without inspection) or fraudulently (using a fake passport, for example). Some people are removable due to criminal convictions or other immigration violations. Read the NTA and make sure all of the allegations are correct.
The NTA also contains one or more charges. The charges indicate the section of the law (the Immigration and Nationality Act or INA) that the government can use to deport you. One common charge is under INA § 237(a)(1)(B), where the person is removable for having “remained in the United States for a time longer then permitted.” Other charges could relate to an unlawful or fraudulent entry, or to a criminal conviction.
Finally, the NTA will tell you where to go to Immigration Court. Usually, these days, the NTA does not tell you when to go to court. Instead, it says, “TBD,” which means “To Be Determined.” If your court date is TBD, you will receive a notice in the mail with the date of your first hearing. It is important to keep your address updated with the Immigration Court. Use form EOIR-33, and don’t forget to send an extra copy to the DHS Office of the Chief Counsel (the prosecutor).
Also, you can call the Court phone system to check the status of your case and learn whether you have an upcoming hearing. The phone number is 800-898-7180. It is a computer; not a person. Once it answers, follow the instructions and enter your Alien number. After the computer spells your name and you confirm, you can push 1 for your next court date. I recommend you call once a week, just in case you don’t receive the written notice (if you miss your court date, the judge will likely order you deported).
The wait time for the first court date depends on the court and the judge—it could take a few weeks or a few months (or sometimes longer).
Once you are scheduled for court, you will be assigned a judge. The 800-number will tell you the name of your judge. You can learn more about your judge at TRAC Immigration (information is not available for newer judges).
The first hearing is called a Master Calendar Hearing (“MCH”). Many people attend that hearing, and you have to wait your turn. When it is your turn, if you have a lawyer, the Immigration Judge (“IJ”) will take “pleadings.” This is when you (through your attorney) admit or deny the allegations and charges in the NTA. After that, the IJ will usually schedule you for an Individual Hearing (also called a Merits Hearing).
If you do not have an attorney with you at the MCH, the IJ will usually give you a continuance to find an attorney. If that happens, you will be scheduled for another MCH. In generally, the IJs really want you to find a lawyer, as it makes their job easier and it significantly increases the likelihood that your case will be approved.
For most referred asylum applicants, the NTA is correct and the person will admit the allegations, concede the charges of removability, and request asylum, Withholding of Removal, and relief under the United Nations Convention Against Torture. However, in some cases, the NTA is not correct. Also, some applicants can seek other relief, such as Cancellation of Removal or adjustment of status based on a familial relationship (or something else). One job of the attorney is to explore what types of relief you might be eligible for.
Also, at the MCH, the IJ will ask you to designate a country of removal. In other words, the IJ wants to know where to send you if you lose your case. For most asylum applicants, we decline to designate a country of removal. The DHS attorney (the prosecutor) will usually designate the country of citizenship.
If you admit the allegations, concede the charge(s), and indicate what relief you are seeking, the IJ will usually schedule you for an Individual Hearing, which is your trial. If you decline to accept the first Individual Hearing date the IJ offers you, or if you take a continuance to find a lawyer, it could prevent you from obtaining a work permit (if you don’t already have one—if you already have a work permit, you do not need to worry about this). If you think this could be a problem in your case, ask your lawyer. If you do not have a lawyer, ask the IJ.
The wait time between the MCH and the Individual Hearing varies by court and by judge. It might be a few days or weeks (for a detained alien), or it could be several years. Supposedly, for asylum cases referred to Court under the new last-in, first-out system, IJs will be scheduling quick Individual Hearing dates. We’ll have to wait and see how that works out.
The Individual Hearing is your trial. It is where you present evidence, and where you and your witnesses testify. At the end of the Individual Hearing, the IJ will usually make a decision—give you asylum, give you some other type of relief, or order you deported. Sometimes, a case requires more than one Individual Hearing. Other times, the IJ will send the decision by mail.
If lose your Individual Hearing, you can appeal to the Board of Immigration Appeals (“BIA”). If you win your asylum case, DHS can appeal (thankfully, that is not so common). You do not appear in-person for the appeal. Instead, you (or hopefully, your lawyer) will submit a brief, and the BIA will read it and make a decision in your case. Either the BIA will dismiss the appeal, meaning the IJ’s decision was correct and will remain in force, or it can alter or reverse the IJ’s decision. In the latter instance, the case will normally be returned to the IJ to correct the error, and issue a new decision.
An appeal with the BIA typically takes about six months or a year, but it depends on the case.
If you lose at the BIA, you can file a Petition for Review with the appropriate federal appellate court, and if you lose there, you can try to go to the U.S. Supreme Court. Very, very few cases make it that far. Also, if you lose at the BIA, whether or not you go to federal court, you are no longer eligible for a work permit based on a pending asylum case, and you can be deported (typically, ICE will not deport someone with a pending federal case, but they have the legal authority to do so unless the federal court issues an order “staying” removal). For the vast majority of aliens, if you lose at the federal appellate level, that is the end of the line.
In my experience, it is a bit easier to win an asylum case in Immigration Court as compared to the Asylum Office. But it is much more difficult to win at the BIA, and even more difficult to win at the federal appellate level.
So this is the basic process that most cases follow if they are denied at the Asylum Office. There are some exceptions and different paths (most notably Motions to Reopen and/or Reconsider), but the majority of applicants will follow this process. If your case is rejected by the Asylum Office, it becomes even more important to have a lawyer assist you. If you can’t afford a lawyer, check this posting for some helpful resources. And remember, losing at the Asylum Office is frustrating and upsetting, but it is by no means the end of the road. Keep fighting, and hopefully, you will have a good result in the end.
These days, the estimated wait time for an affirmative asylum case is somewhere between eternity and forever. It can best be expressed numerically as ∞. Or maybe as ∞ + 1. In other words, affirmative asylum cases take a long damn time. (OK, to be fair, you can get some idea about the actual wait time here).
Asylum seekcars waiting for their interview.
For some people, this wait is more of a problem than for others. For example, if your spouse and children are outside the United States waiting for you, and especially if they are living in unsafe or unhealthy conditions, the wait can be intolerable. A growing number of people are abandoning their cases simply because they cannot stand the separation. Others are moving to Canada, which apparently has a faster system than we have in the States. The problem is not simply that the wait is long—and the wait is long. The problem is that we cannot know how long the wait will be. Maybe the interview will come in six months; maybe in three years. Maybe the decision will come shortly after the interview; maybe it will take months or years. This unpredictability contributes to the difficulty of waiting for a resolution to the case.
For others people—single people without children or families that are all together here in the U.S.—the wait may be stressful, but it’s far more bearable. For my clients in this position, I advise them to live as if they will win their cases. What else can they do? To live under the constant stress of potential deportation is unhealthy. And the fact is, most of my clients have strong cases, and the likelihood that they will succeed it pretty high. So it is best to live as normally as possible. Find a job, start a business, buy a house or a car, go to school, make friends, get on with life. In the end, if such people need to leave the United States, they will have time to wind down their affairs and sell their belongings. For now, though, if I may quote the late, great Chuck Berry, Live like you wanna live, baby.
But what if you want to try to expedite your case? How can you maximize the chances that the Asylum Office will move your case to the front of the line?
First, before you file to expedite, you need to complete your case. The affidavit must be finished and all the evidence must be organized and properly translated (if necessary). If you expedite a case and the case is not complete, it could result in real problems. For example, I once had a client put himself on a short list without telling me. Then one day, an Asylum Officer called me and said that they wanted to schedule his interview for the following week. The problem was, the evidence was not submitted (or even gathered) and the affidavit was not done. The client insisted on going forward, and so (while I helped with interview preparation), I withdrew from the case. I did not want to remain affiliated with a case that was not properly put together, and I did not want to represent a person who took action on his case without informing me. In general, there is no value in expediting a case only to lose because you are not prepared for the interview, so make sure your case is complete before you try to expedite.
Second, you need a good reason to expedite. Remember, you are asking to jump your case ahead of hundreds–maybe thousands–of people who are also waiting for their asylum interview. Why should the Asylum Office allow you to do that? One common reason is that the applicant has a health problem (physical or mental). If that is your reason, get a letter from the doctor. Also, provide some explanation for how an early resolution of the asylum case might help improve your health situation (for example, maybe you have a health problem that is exacerbated by the stress of a pending case).
Another common reason to expedite (and in my opinion, the most legitimate reason to expedite) is separation from family members, especially if those family members are living under difficult or dangerous circumstances. If an asylum applicant wins her case, she can file petitions to bring her spouse and her minor, unmarried children to the United States. Many people come to the U.S. to seek asylum not for themselves, but because they fear for the safety of their family. Since it is so difficult to get a U.S. visa, it’s common to see asylum seekers who leave their family members behind, in the hope that they can win asylum and bring their family members later. So when the wait for an interview (never mind a decision) is measured in years, that’s a real hardship. For our asylum-seeker clients with pending applications, we have seen cases where their children were attacked in the home country, where family members went into hiding, where children could not attend school or get medical treatment, where families were stuck in third countries, etc., etc., etc. Such problems can form the basis for an expedite request.
To expedite for such a reason, get evidence of the problem. That evidence could be a doctor’s note for a medical problem or an injury, or a police report if a family member was attacked or threatened. It could be a letter from a teacher that the child cannot attend school. It could be letters from the family members themselves explaining the hardship, or letters from other people who know about the problems (for advice on writing a good letter, see this article). Also, sometimes family members receive threat letters or their property is vandalized. Submit copies of such letters or photos of property damage. It is very important to submit letters and evidence in support of the expedite request. Also, remember to include evidence of the family relationship–marriage certificate or birth certificates of children–to show how the person is related to the principal asylum applicant.
There are other reasons to request an expedited interview: Until an asylum case is granted, applicants may not be able to get certain jobs, they cannot qualify for in-state tuition, they face the general stress of not knowing whether they can stay. While these issues can be quite difficult to deal with, I think that they do not compare to the hardships suffered by people separated from family members. Indeed, if I were in charge of the Asylum Division, I would allow expedited interviews only in cases of family separation.
Once your case is complete and you have gathered evidence in support of the expedite request, you need to submit the request and evidence to the Asylum Office. Different offices have different procedures for expediting. You can contact your Asylum Office to ask about the procedure. Contact information for the various Asylum Offices can be found here.
One last point about expediting asylum cases: The system for expediting cases is not well-developed, meaning that sometimes, a strong request will be denied or a weak request will be granted. There definitely seems to be an element of luck involved in the expedite request process. But of course, unless you try to expedite, you can’t get your case expedited. If an initial request is denied, you can gather more evidence and try again (and again). At least in my experience, most–but not all–cases where there was a good reason to expedite were, in fact, expedited.
Besides expediting asylum cases, it is also possible to put your case on the “short list,” which may result in an earlier interview date. You can learn more about that and a few other ideas here.
It is still unclear how changes in the new Administration might affect the speed of asylum cases, but I doubt that the asylum backlog is going away any time soon. In that case, for many people, the only options are to learn to live with the delay or–if there is a good reason–to ask for an expedited interview and then to hope for the best.
The S visa–colloquially known as the “snitch” visa–is a visa available for aliens who cooperate with law enforcement officers. The S visa is a non-immigrant visa, but it can lead to a green card once “the individual has completed the terms and conditions of his or her S classification.” “Only a federal or state law enforcement agency or a U.S. Attorney’s office may submit a request for permanent residence as an S non-immigrant on behalf of a witness or informant.”
The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).
In other words, when an alien cooperates with the government in a criminal investigation, the government can apply for the alien’s lawful permanent residency–the alien himself cannot independently apply for the green card.
The number of S visas available nationwide is quite limited. According to the Justice Department, 200 visas are available each fiscal year for “aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year [are available] for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State’s rewards program.”
While the visa is rarely granted, it seems to be regularly promised. The result: Many aliens who cooperate with law enforcement expect to receive an S visa, only to be left with nothing. I’ve recently witnessed this phenomena in a few of my own cases.
In one case, a young women was enlisted by her boyfriend to transport heroin from her country to the U.S. She was captured on arrival and immediately cooperated with American law enforcement. Thanks to her assistance, several drug traffickers were arrested and prosecuted. In the course of the criminal investigation, law enforcement officers promised her an S visa. Once the investigation was complete, the government failed to deliver the S visa. My client was eventually released from jail, married, and started a family. DHS left her alone for a while, but eventually placed her into removal proceedings. She now fears (quite reasonably) that the drug traffickers she informed on will seek revenge against her if she returns to her country. We applied for deferral of removal under the Convention Against Torture (the only relief she was eligible for after her conviction). However, because she was such a low-level member of the conspiracy, she was unable to identify specifically who might harm her in her country. DHS fought hard to have her deported, and the Immigration Judge ultimately found that we could not demonstrate a more-likely-than-not probability of torture, so she now faces deportation. What particularly bothers me about this case is that my client’s cooperation led directly to her fear of harm, but the U.S. government didn’t care. When they got what they wanted from her, the law enforcement agents dropped her like yesterday’s news.
In a second case, my client discovered that his attorney was operating a scheme to file fraudulent employment-based immigration petitions and false asylum claims (and no, I was not his attorney at the time – sheesh). He reported the fraud to law enforcement and actively participated in the investigation. In the end, the attorney was sentenced to prison and disbarred. Throughout the investigation, DHS and the FBI repeatedly–and in writing–promised the client an S visa and told him that the visa was being processed. Once the investigation ended, law enforcement suddenly changed their mind and informed my client that they would not pursue an S visa for him. The client had a legitimate claim for asylum, but he failed to file a case because he was relying on the U.S. government’s promise of an S visa. As a result, he missed the one-year filing deadline to submit his asylum application (an asylum applicant must file his case within one year of arrival in the U.S. or meet an exception to the one-year filing requirement; otherwise, he is ineligible for asylum). We litigated the case in court. In the end, the Immigration Judge denied asylum because the client had not filed within one year of arrival. The Judge found that reliance on the government’s promise of an S visa did not qualify as an exception to the one-year bar. Instead he granted my client withholding of removal, a less-desirable form of relief.
In both these cases, the government promised something, my clients relied on the promise, and the government failed to deliver. I understand the government’s need to obtain cooperation from witnesses, even to the extent that government agents lie to witnesses to secure their assistance. However, in the case of the S visa, some cooperating witnesses (like my clients) face real harm–including possible persecution or death in the home country–when the government breaks its promise.
So what can be done?
It seems to me that any alien who relies on the goodwill of the government in an S visa case is being taken for a fool. The offer of an S visa is not enough–cooperating witnesses need an attorney to press the government to keep its word. And this is not something that can be done after the criminal investigation is complete. Once the government gets what it wants (i.e., cooperation), there is nothing to prevent it from reneging on its promise.
Aliens with potential asylum claims are particularly vulnerable. For them, I would want a letter from the ICE Office of the Chief Counsel agreeing that the S-visa process constitutes “exceptional circumstances” excusing the one-year asylum bar. That way, in the (likely) event that the S visa does not come through, at least the alien will not be barred from seeking asylum because she missed a deadline.
In short, if law enforcement officers promise you an S visa, you should understand that in many cases, they will not follow through with their promise. But if you take steps to compel the government to issue the S visa, and you have a back-up plan in the event that the S visa does not come through, you will maximize the chance that your cooperation will lead somewhere other than a dead end.
If you asked my clients their number one complaint about me, it’s that they think I take too long to prepare and file their affirmative asylum cases. Conversely, if you asked me my number one complaint about my clients, it’s that they are always pushing me to file their cases as quickly as possible. Since this blog is written by me, and not by my clients, I can tell you unequivocally that I am right and they are wrong. Here’s why–
Going fast does not always get you the result you want.
First and foremost, it takes time to properly prepare and file an asylum case. Even in a very strong case–and especially in a case with a lot of evidence–it is important to make sure that all the letters and documents are consistent. That translations are correct. That dates, which often use a different calendar, are properly converted to the Western calendar. That the dates in the asylum form match the dates in the affidavit, and that passports, visas, and other documents make sense with the client’s chronology as she remembers it. You would be surprised how often there are problems with dates, chronologies, and translations. In fact, it is the rare case that does not involve my staff or me finding major mistakes in the documents. While this is usually the result of carelessness on the part of the client or a witness, such errors can be fatal to an asylum case, where inconsistencies are often seen as evidence of fraud. There is simply no way around it, it takes time to review all this and put together a consistent and well-crafted application.
Second, any asylum attorney who is any good will probably be busy, especially if his prices are reasonable. Indeed, the only way to keep prices reasonable is to do these cases in bulk. Therefore, if you expect to pay a reasonable price for your case, you can probably expect to wait a bit to have it filed. In our office, it typically takes one to two months to prepare and file an affirmative asylum case. Although the cases do not need to be completely finished when we file (because we can submit supplemental material a week prior to the interview), they need to be mostly done. Why? Because the timing of interviews is unpredictable. The interview may not occur for two months (or more) after we file the application, but it might occur in four weeks. So if the case is not near completion at the time we file, we may not have time to properly finish it and review everything before the interview.
Finally, attorneys–you may be shocked to learn–are human. And humans make mistakes. When we rush, we tend to make more mistakes, and mistakes sometimes cause clients to lose their cases. When we have time to prepare a case, think about the facts and the law, strategize about how to resolve problems (and most cases have problems of one sort or another), research country conditions, and carefully review all the evidence, we minimize the chances for mistakes and maximize the odds of winning.
There are, of course, very legitimate reasons for wanting to file a case quickly–separation from family, stress, uncertainty, fear of being out of status, inability to work. Probably the most legitimate reason to file quickly is to meet the one-year asylum filing deadline (asylum applicants are required to file for asylum within one year of arrival in the United States; people who file after one year risk being ineligible for asylum). But as long as there is not a one-year issue, it is far better to take a few extra weeks to file a case correctly than to rush. In my humble (and correct) opinion, if you prioritize speed over winning, you are misplacing your priorities. If you lose your case, it will likely be referred to an Immigration Judge, which can easily take several years to resolve.
So take a breath. Relax. And take the time to do your case right. Going a bit slower at the beginning may save you a lot of time in the end.
You may already be familiar with the story behind the story of The Cuckoo’s Calling, a novel published under the name Robert Galbraith. Turns out, there is no Robert Galbraith. The story was actually written by J.K. Rowling, of Harry Potter fame. Ms. Rowling hoped to publish the new novel without the Potter baggage, but she was foiled by Patrick Juola, a professor at Duquesne University.
Stylometrists are always stylish. Prof. Juola (left) dressed as GQ man Abe Lincoln.
Prof. Juola is a mathematician who created a computer program–the Java Graphical Authorship Attribution Program (Jgaap)–that can recognize writing tics undetectable by human readers. According to the Chronicle of Higher Education, Prof. Juola “loaded an electronic version of Cuckoo into Jgaap, along with several other [of Ms. Rowling’s] texts.” The program then
compare[d] the sample texts to the Galbraith text using four variables: word-length distribution; the use of common words like “the” and “of”; recurring-word pairings; and the distribution of “character 4-grams,” or groups of four adjacent characters, words, or parts of words.
The findings were not unequivocal, but they made a pretty strong case for Ms. Rowling as the author of Cuckoo. Confronted with this and other evidence, Ms. Rowling admitted her authorship of the book. She told an interviewer that she would have liked to remain anonymous for a while longer stating that, “Being Robert Galbraith has been such a liberating experience… It has been wonderful to publish without hype and expectation and pure pleasure to get feedback under a different name.”
Stylometry, which is the application of the study of linguistic style, has broader uses than just outing famous authors. It is often used to attribute authorship to anonymous or disputed documents. It has legal as well as academic and literary applications, ranging from the question of the authorship of Shakespeare (whose works were obviously written by Francis Bacon!) to forensic linguistics. It also has application to the world of asylum.
Prof. Juola reports that he used his techniques to help an asylum seeker prove that he was the author of several politically charged articles that had been published anonymously on the internet. According to the Professor’s website, “Using statistical linguistics, we were able to analyze the writing style against an ad-hoc collection of distractor authors and to establish using non-parametric rank-order statistics that the documents had indeed been written by the [asylum] seeker.” In other words, Prof. Juola demonstrated a statistical likelihood that the asylum seeker authored the articles in question. Apparently, this evidence was helpful in the case, as the Immigration Judge granted political asylum.
I was interested to read about Prof. Juola’s work, as I faced a similar issue for an Ethiopian asylum seeker some years ago. He claimed that he wrote newspaper articles under a pseudonym, and those articles were offensive to the government. Somehow, his identity was exposed after he left the country, and he feared persecution if he returned. We needed evidence of the client’s authorship, and so I asked him for the usual stuff–rough drafts of the articles, a letter from the newspaper editor, letters from other people who knew about what he had written. In the end, we had to rely on letters from people who knew him and on his own testimony. Fortunately, it proved to be enough, and he received asylum.
Had I known about Prof. Juola, perhaps I could have used him to assist us in the case (though generally, my clients do not have a lot of money for expert witnesses). While the professor’s analysis cannot demonstrate with 100% certainty that a particular person wrote a particular article or book, Prof. Joula could possibly provide additional support to help corroborate a claim. In a close case, this could make the difference between a denial and a grant.
Some clients just don’t get it. No matter how often you tell them what evidence they need for their case, they bring you bupkis.
Generally, when I start an asylum case, I ask the client to give me the general story about why he needs asylum. I then prepare a detailed list of documents that he should get: letters from witnesses, school records, work records, medical reports, police reports, etc., etc. I explain to the client why he needs to get these documents, and why, under the REAL ID Act, he should try to get the documents even when he thinks he will not be able to obtain them (for those of you lucky enough not to be familiar with the REAL ID Act, the Act requires an asylum seeker to obtain evidence that is reasonably available. If the alien cannot obtain a particular piece of evidence, he must explain why he could not get it. Thus, if the client tries to get all relevant evidence–even if he fails–at least he will be able to explain to the adjudicator what efforts he made to obtain the evidence and why he failed to get it).
I make analogies to help the client understand (evidence is like the foundation upon which a house, i.e., your case, is built). I make them sign a document indicating that it is their responsibility to obtain the evidence on the list, and that if they don’t get the evidence, they could lose their case.
Is all this excessive? You would think so. You would think that a person who fears persecution in her homeland and who shells out a pretty penny for attorney’s fees would be motivated to do everything possible to win her case.
Many clients do, in fact, make diligent efforts to get evidence in their cases. It is surprising, however, the number of asylum seekers who do nothing or very little to help themselves. Such clients greatly reduce their chances for a successful outcome.
So what can be done about these slacker-clients? One possibility, of course, is to do nothing. If the client does not care enough about his case to collect evidence, maybe it is best to prepare the case with the available evidence and let the chips fall where they may. This does not seem like a very satisfactory solution, though. For one thing, there may be a legitimate reason why the client is not cooperating. Perhaps he does not understand what is needed or why such evidence is important. Maybe he is afraid or embarrassed to ask friends or relatives to help him with his case. Maybe he fears that the people sending evidence will be endangered. Some of these problems might be offset by carefully explaining why documents are needed and that all such communications are confidential. For obvious reasons, however, many asylum seekers are mistrustful of government workers (and lawyers, who often seem like government workers), and getting them to trust you–and getting them to trust “the system”–requires patience.
Another way to encourage clients to gather evidence is to nag them. “Nagging” or, more politely, “repeatedly reminding” clients to get evidence may work, but it takes time to stay on top of each client’s case. In my practice, I don’t have a lot of extra time to chase after my clients. I do, however, try to remind them once or twice about the need for evidence.
I find that giving the client a check list of needed documents is helpful. When it comes time to remind them about gathering evidence, I always refer them to the check list. It helps me remember their case as well. A check list signed by the client has an added benefit–if the case is unsuccessful, the client cannot complain that you failed to advise her about the need for evidence.
Asylum seekers are not always the easiest clients. As lawyers, we need to use our limited time efficiently. That means informing the clients about the need for documents, and periodically reminding them about what is needed. For those clients who don’t make an effort to get documents, a bit of cajoling, threatening, and/or nagging from the attorney might encourage them to gather needed evidence. And that could make the difference between a successful case and a denial.
I was never quite sure what that meant, but it somehow seems appropriate to preparing asylum cases. There is a temptation when preparing a case to include everything the applicant brings you: school and work records, letters from witnesses, police documents, medical documents, news articles. But sometimes in asylum, less is more, and the more asylum cases I do, the more I feel comfortable leaving things out.
Zen and the art of asylum application.
For one thing, I’ve seen too many cases where the client included a piece of unnecessary evidence, only to have that piece of evidence create problems. For example, I worked on an Ethiopian asylum case that was well supported with letters and other evidence. The client also included a hospital receipt showing that she was treated for stomach illness shortly after her release from prison. The document supported her assertion that she was sick while in prison, but we had other evidence for that, including letters from people who saw her after she was released. DHS investigated the document and found that it was fraudulent. Ultimately, the client was granted asylum, but not without a whole lot of difficulty and expense that could have been avoided if we left out the hospital receipt.
The hard part, of course, is how to know what to leave out. Generally, if I have a document that solidly supports one aspect of the applicant’s claim, I feel comfortable leaving out other documents that do the same thing. For example, I am representing an Afghan asylum seeker who worked with a well known NATO General in Afghanistan. We have photos of the two men together, a letter from the General, and letters from other people attesting to the relationship. If my client’s claim is that the Taliban threatened to harm him because he was seen together with the NATO General, then it would be helpful to prove that my client and the General were actually together (I do not need to prove the substance of their meeting, only that they were together). The photos alone are enough to prove that the two men met; the remaining evidence is extraneous and has the potential to create problems–maybe a letter is incorrectly dated or the government will suspect that the General’s letter is fraudulent and send it for a time-consuming investigation. In this scenario, when I submit the additional evidence, I gain nothing for my client and we potentially create problems. So why submit this additional evidence?
The REAL ID Act requires an asylum applicant to submit supporting evidence or explain the absence of that evidence, so I am not advocating not submitting pertinent evidence. I merely suggest that an asylum applicant does not need to submit redundant evidence once he has submitted sufficient evidence to prove an aspect of his story. Submitting the additional evidence may “bulk up” the asylum application, but it also creates the risk of an inconsistency–and inconsistencies can pop up where you’d least expect them.
I think this principle holds true for general country condition information as well. I’ve worked on several appeals where the underlying case was litigated by someone who submitted copious evidence of country conditions. Why? If the New York Times has an article about a particular political rally, you don’t need an additional article from the BBC to prove that the rally occurred. The second (or fifth) article is completely redundant and so it adds nothing to the case. However, it does serve to burden the fact-finder. And worse, it creates the risk of an inconsistency.
I guess the lesson for today is: Prove your case, but not too much.
Congressman Steve King (R-Iowa) is the latest politician to exploit President Obama’s Aunt Onyango for political gain. Zeituni Onyango is the Kenyan half sister of President Obama’s father. She filed for asylum in 2002 and lost, but after Obama came onto the national scene, she re-applied and her application was granted. Applications for asylum are confidential, but that doesn’t seem to bother Rep. King. In a letter to the Chair of the Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, he writes:
I am concerned about the public perception that favoritism played a role in the grant of asylum to Ms. Onyango. The Boston Globe reported that “the [asylum] decision unleashed a firestorm of criticism from those who felt Onyango received preferential treatment because of her relationship with the president.” In order to better determine whether favoritism played a role – especially because Ms. Onyango had been earlier turned down for asylum and ordered deported in 2004 before her nephew became president – the Subcommittee needs to hear from Ms. Onyango herself. Therefore, I will invite her as the Republican witness on the second panel at Thursday’s hearing.
While I understand that asylum proceedings are generally confidential, Margaret Wong, Ms. Onyango’s attorney, has clearly courted press attention regarding this matter. In fact, I assume that the press learned that Ms. Onyango received asylum because of comments to the media made by Ms. Wong. Therefore, Ms. Onyango has made herself a public figure and should have no hesitation about appearing before the Subcommittee. Further, in order to facilitate Ms. Onyango’s appearance before the Subcommittee, I request that you and Chairman Conyers authorize the Committee to reimburse her travel expenses.
I’ve already written about Ms. Onyango’s case and the likely basis for granting her asylum. Suffice it to say, for anyone familiar with the law of asylum, it’s no great stretch to imagine why Mr. Onyango’s case was approved. Further, Rep. King’s attempt to blame Ms. Onyango’s attorney (who is apparently a bit of a self-promoter) for turning Ms. Onyango into a public figure is ridiculous–Ms. Onyango cannot be blamed for her attorney’s actions. Finally, if there were any type of misconduct or improper influence in this case, why ask Ms. Onyango about it? Why not subpoena the Immigration Judge or the DHS attorney? The reason is simple. Rep. King does not care about the truth. He just wants to exploit Obama’s Aunt for his own political gain.
The Senate Judiciary committee held a hearing yesterday on the Refugee Protection Act. I wasn’t able to attend, but the Senate conveniently records such hearings, and you can view it here.
Doggone it, people like the RPA
My friend who attended thought it did not go very well for supporters of the bill. I can’t say I agree, though the last five minutes, when neither of the pro-RPA witnesses could answer Senator Franken’s softball questions and each tried to defer to the other, was not a shining moment. Here are some other moments worth mentioning:
The ranking Republican, Senator Sessions from Alabama, raised some legitimate (and some not-so-legitimate) concerns that will probably need to be addressed if the bill is ever to become law. Of course, the first issue was national security. He felt that the RPA would allow Osama Bin Laden’s wife (wives?) and children to claim asylum in the United States, as the law relaxes barriers for family members of terrorists. Given the limited number of people we can admit each year, he argued, we would be better off admitting people without close ties to terrorists. He also stated that the RPA would broaden the definition of “asylum seeker,” and thus encourage more fraudulent claims. He questioned how many people we could realistically allow to enter the United States as refugees and asylees. He argued that we could not admit everyone who meets the definition of a refugee, and said that if things fell apart in Afghanistan or Iraq, we could not take in all the people who sided with us in those wars.
There were two pro-RPA witnesses, Dan Glickman of Refugees International and Patrick Giantonio of Vermont Immigration and Asylum Advocates. They argued that the one-year filing deadline does not serve its intended purpose of reducing fraud. Mr. Giantonio noted that many asylum seekers who fail to file within one year of arrival receive withholding of removal or relief under the UN Convention Against Torture. Both forms of relief have a higher burden of proof than asylum. Thus, if the one year deadline were not an issue, such people would have qualified for asylum (I agree with this point). From the alien’s point of view, asylum is a more desirable outcome than the other forms of relief, but the witnesses did not mention the benefits of asylum. The pro-RPA witnesses also emphasized that the bill would not compromise national security because refugees and asylum seekers would remain subject to all the same background checks that are currently required. Mr. Giantonio also briefly mentioned some of the deleterious effects of immigration detention on asylum seekers.
Igor V. Timofeyev, a former DHS official and a Soviet Jewish refugee, testified in his personal capacity. He appeared as the anti-RPA witness, though his criticisms were fairly tame (refreshing given the normal discourse on most immigration-related issues). His concerns were national security, national security, and national security. He also mentioned that federal appeals courts are overburdened with immigration cases.
Finally, it bears mentioning that Senator Leahy included in the record a letter signed by 89 faith-based, human rights, legal services and refugee assistance organizations and 99 individual asylum law practitioners, pro bono attorneys, law professors and other experts in the field (including this humble blogger).
From the Heartland Alliance’s National Immigrant Justice Center:
Heartland Alliance’s National Immigrant Justice Center and 30 other national and international immigrant and human rights organizations, think tanks, and academics have petitioned the U.S. Department of Homeland Security (DHS) and Department of Justice (DOJ) to issue regulations allowing the release of detained asylum seekers who pose no danger to the community and would face persecution if returned to their home countries.
According to the report, in 2006, “of the 5,761 asylum seekers who were detained, 1,559 (27%) were detained for more than 180 days.” The report continues: “On average, arriving aliens who eventually obtain asylum spend 10 months in detention.” The report discusses the mental and physical effects of detention on asylum seekers, and also notes that the cost of detaining asylum seekers averages $95 per person per day–from 2003 to 2009, we spent more than $300 million to detain asylum seekers. The report recommends regulatory changes to allow more detained asylum seekers to be released prior to their final hearings.
As usual, this problem is also a question of the asylum seeker’s financial situation and access to counsel. Represented asylum seekers who are eligible for release (and who can afford to pay the bond) will almost always be released in a month or two. The poorest and most vulnerable asylum seekers are the most likely to remain detained. Case in point: I received a call today from a woman whose sister was threatened by gang members in El Salvador. She fled the country, crossed the border illegally, and was detained. She is currently being held in Eloy, Arizona, and has already made a claim for asylum. The sister is looking for an attorney in Arizona to prepare an application for bond. I referred her to the Florence Project, an excellent legal services organization that assists immigrants detained in Arizona. If the woman can secure a bond, the chances of her asylum claim succeeding will be much improved. If she remains detained, she will have to prepare her case and gather evidence–such as letters from witnesses, police reports, and medical reports–from behind bars. Under those circumstances, I imagine the chances for her to succeed are pretty slim.