Forced Abortion and Forced Sterilization as Grounds for Asylum

by Jason Dzubow

In reaction to the government of China’s one-child policy, Congress amended the asylum law in 1996 so that “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.” In other words, a person who is or could be subject to a forced abortion or forced sterilization may be eligible for asylum in the United States.

While this law was created with China in mind, there is no requirement that asylum seekers fear persecution in that nation. Indeed, over the years, advocates (including yours truly) have tried to use this law to obtain protection for people from many different countries. A recent article by Karla Colley in the Columbia Human Rights Law Review sets forth the arguments for an expansive use of the forced abortion-forced sterilization basis for asylum. Due to the prevalence of these practices around the world, Ms. Colley concludes that “attorneys and physicians need to screen all female clients for involuntary sterilization during the intake process and the forensic medical evaluation.” I think she is exactly right. Women who have been victims of forced abortion or forced sterilization can use that as a basis for an asylum claim, and as advocates, we have a responsibility to pursue all avenues of relief for our clients. (more…)

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Asylee Walks 300 Miles in Support of Kurdish Rights

by Jason Dzubow

One hundred years ago, in the aftermath of World War I, Britain, France, Turkey, and other nations signed the Treaty of Lausanne, which divided Kurdistan between what are today Turkey, Syria, Iraq, and Iran, and blocked the national aspirations of the Kurdish people. Since then, Kurds have endured persecution, war, cultural genocide, and mass killings.

As a result of these conditions, many Kurdish people have fled their homeland, and some have received asylum in the United States. One such asylee is Kani Xulam, who is now the director of the American Kurdish Information Network.

To call attention to the 100th anniversary of the partition of Kurdistan, Mr. Xulam recently walked from the Lincoln Memorial in Washington, DC to the United Nations in New York City. His journey covered more than 300 miles and took 24 days. (more…)

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Congress to the Asylum Office: “You Must Do Better!”

by Jason Dzubow

In a recent letter to USCIS, 61 members of Congress have expressed their “concern” about delays at our nation’s Asylum Offices. The letter calls on USCIS to prioritize the oldest cases for interviews and asks a number of pointed questions about the reasons behind the agency’s interminable delays.

Anyone familiar with the asylum system knows why this letter was necessary–approximately 800,000 cases (representing well over 1 million people) are stuck in the affirmative asylum backlog. More than 180,000 of these cases have been pending for five years or more, and some applicants have been waiting for their interview since 2015 with no real prospect of being interviewed any time soon. (more…)

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Federal Court Strikes Down Biden Border Policy, Delighting Immigration Advocates and Trump Campaign Officials

by Jason Dzubow

Last week, a federal court struck down President Biden’s border enforcement rule, known as the Circumvention of Normal Pathways rule. The decision jeopardizes “the administration’s strictest deterrence measure to date and comes as illegal border crossings have plunged to their lowest level since President Joe Biden’s first full month in office.”

Today, we’ll discuss the Biden Administration’s rule, why a judge found that the rule is illegal, and the practical and political implications of the court’s ruling. (more…)

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Asylum Data from Immigration Court Raises More Questions Than It Answers

by Jason Dzubow

The Executive Office for Immigration Review (EOIR), the organization that oversees our nation’s Immigration Courts, has released new data about asylum grant rates by country of origin. While EOIR deserves credit for trying to be more transparent, it is difficult to know what to make of these numbers. They are confusing, poorly organized, and–for lack of a better word–strange.

Here, we’ll take a look at the data and try to parse some meaning from EOIR’s madness. (more…)

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Asylum: Journey Into the Unknown

by Jason Dzubow

It is the job of a lawyer to learn about your situation and then advise you of your options. You want to know, “If I do X, what will happen?” In many areas of the law, attorneys can provide this type of advice. If you rob a bank and get caught, you will go to jail. If you sign a contract and then breach your agreement, you will be liable for damages. If you fail to pay taxes, you will face criminal and civil penalties.

But in immigration law–and particularly in asylum law–it is often impossible to provide precise advice. The unfortunate fact is that asylum seekers must live with significant uncertainty. (more…)

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Great Asylum Seekers, Great Americans

by Jason Dzubow

Every year on the Fourth of July, Carnegie Corporation of New York–an organization devoted to advancing democracy, education, and international peace–celebrates naturalized U.S. citizens who have “enriched and strengthened our nation and our democracy through their contributions and actions.” This year, the 35 honorees come from 33 different countries, and have all benefited the United States in important ways.

Several honorees on the list are forced migrants, and I want to highlight a few of their stories. While the Carnegie honorees are extraordinary, in many respects, their stories and their contributions are not so different from other immigrants and refugees, including many of my own clients. Every day, I am amazed by what my asylee clients have overcome and what they accomplish once they are here. As our nation celebrates its 247th birthday, it is worth reflecting on the contributions that immigrants–including refugees and asylees–have made. And so, without further ado, here are a few Carnegie honorees who were forced to flee their home countries, and who have enriched our nation by their presence. (more…)

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AILA Prepares Sensible New Report on Asylum for the U.S. Government to Ignore

by Jason Dzubow

The American Immigration Lawyers Association (AILA) surveyed more than 300 immigration lawyers (including yours truly) about asylum and has issued a new report with findings and recommendations: High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better.

The report makes some useful suggestions for improving the system, and it is well worth a look. It also has some significant flaws (at least in my opinion). As I see it, though, the biggest problem–as usual for these types of things–is how to prevent the U.S. government from simply ignoring the report and continuing on its merry way. (more…)

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Winning Old Asylum Cases

by Jason Dzubow

As you probably know, asylum applicants often wait years for their interview or court hearing. Some cases get stronger with time, but most do not. Sometimes, country conditions improve or change in a way that makes it more difficult to win asylum. Other times, the asylum laws or regulations change in a way that is unfavorable. More commonly, the very fact that an applicant has been away from her home country for a long time makes it seem less likely that she will be harmed if she returns. The Immigration Judge or Asylum Officer will want to know why anyone back home would still remember you, let alone want to harm you, after so much time outside the country.

If you’ve been waiting for a long time for your Asylum Office interview or Immigration Court hearing, and you think your case has become weaker, what can you do? (more…)

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LGBT Asylum and LGBT Rights

by Jason Dzubow

This Pride Month feels different than in years past. After decades where it felt like the moral arc of the universe was bending towards Justice and tolerance, gay and trans rights–and gay and trans people–are under assault by right-leaning politicians, media personalities, and members of the community. Hard-won progress now seems under threat. Republicans are using a time-tested strategy of falsely imputing power to a vulnerable community (for example, the power to “groom” children) and then attacking that community based on the false narrative. It reminds me very much of blood libels, where Jews were falsely accused of murdering Christian children, and this became an excuse for violence against the Jewish community.

But while sexual minorities are under threat, particularly at the state and local levels, LGBT asylum cases continue to be approved by the federal Immigration Courts. What explains this discontinuity? And should we feel hopeful for society that LGBT asylum seekers are still being accepted, or fearful that the retrenchment of rights will spread to the asylum system? (more…)

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The Logic of Making You Wait (and Wait and Wait and Wait…)

by Jason Dzubow

If you are one of the 3+ million people waiting for your case in Immigration Court or at the Asylum Office, you might ask yourself, Why is my case taking so long? Of course you know the basic reason: Too many cases and too few people to work on those cases. But why is the system designed this way? Why can’t we have enough Immigration Judges and Asylum Officers so that cases are processed in a timely manner?

Here’s my theory: The system was purposefully created to make you wait. (more…)

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Book Review: The Refugee System by Rawan Arar and David Scott FitzGerald

by Jason Dzubow

Perhaps you’ve heard the parable of the blind men and the elephant. A king summons blind men from his kingdom and asks each one to examine an elephant. One man feels the elephant’s head and says that he’s touching a pot. Another man feels the elephant’s side and describes a wall. A third man touches the elephant’s leg and talks about a tree trunk. One lesson of this story: Unless we have enough information, it’s difficult to determine the truth.

That’s also the lesson of a new book, The Refugee System, by Professors Rawan Arar and David Scott FitzGerald. The book argues that many academics and policymakers view the refugee system too narrowly. Instead of seeing the bigger picture, they focus only on the elements of the refugee system that relate to their area of interest. This type of “siloed” approach has real-world implications for those seeking protection and for the nations that host them. (more…)

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The Initial Consultation: What to Expect When You First Meet With a Lawyer

by Jason Dzubow

Let’s say you’ve found a lawyer–either based on a friend’s recommendation, through an internet search or maybe from an ad you saw on the bus–and you’ve arranged for an initial meeting. How should you prepare for this meeting and what should you expect?

There are a few purposes for an initial consultation. First, the lawyer should evaluate your case, discuss strengths and (especially) weaknesses, and help you understand your options. Second, you need to know whether the lawyer can assist with achieving your goals. And finally, you need to decide whether the lawyer is right for you. Here, we’ll discuss the initial consultation (affectionately called a “consult”) and hopefully help you get the most out of that meeting. (more…)

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The Difference (or Lack Thereof) Between “Democratic” and “Republican” Immigration Judges

by Jason Dzubow

Question: Who do you think is more likely to deny an asylum case, an Immigration Judge appointed by a Republican president or an Immigration Judge appointed by a Democratic president?

As far as I can tell, no one has ever researched this question before; so our team of statisticians here at The Asylumist spent the last few months crunching the numbers, and we now have our answer. If you’re like me, you might find their conclusion a bit surprising. (more…)

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Another Dumb Idea from EOIR

by Jason Dzubow

Here’s one thing that seems clear about the management at EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–no one who works there has ever represented a noncitizen in Immigration Court. How do I know? If the leadership at EOIR had any experience in court or with clients, they would not be implementing so many misguided, destructive, and ineffective policies that are doing great harm to immigrants, their attorneys, and even to DHS attorneys (the prosecutors in court).

The latest dumb idea involves an effort to administratively close cases where the respondent (the noncitizen in Immigration Court) may have some temporary or permanent relief available from USCIS. (more…)

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