A New Rule for Interpreters at the Asylum Office (+ an Update on the Backlog)

by Jason Dzubow

Last week, USCIS announced a new rule for interpreters at Asylum Office interviews. Starting immediately, most asylum applicants should not bring their own interpreter to the interview, as had been the practice up until now. Instead, USCIS will provide an interpreter by telephone for most languages. The reason for the change is, of course, the coronavirus pandemic. This new rule will be in effect until at least March 22, 2021.

There are a few interesting tidbits contained in the rule’s preface, and here, I want to discuss those, as well as the effect of the new rule, plus some tips on working with telephonic interpreters.

One tidbit is statistical. To justify the new rule, USCIS cites some numbers indicating how serious the pandemic is. As of July 31, 2020, “there were approximately 17,106,007 cases of COVID-19 globally, resulting in approximately 668,910 deaths; approximately 4,405,932 cases have been identified in the United States, with new cases being reported daily, and approximately 150,283 reported deaths due to the disease.” This grim assessment by the U.S. government itself seems largely at odds with the picture painted by President Trump, who has pretty consistently underplayed the severity of the pandemic (at least in public, if not to Bob Woodward).

When using a telephonic interpreter, be sure to speak loudly into the phone.

Another interesting tidbit relates to the affirmative asylum backlog. Since the advent of the Trump Administration, the Asylum Office has become more tight lipped about its data, and so we receive fewer updates about the backlog (or anything else). But according to the new rule, as of “July 31, 2020, USCIS had 370,948 asylum applications, on behalf of 589,187 aliens, pending final adjudication.” “Over 94% of these pending applications are awaiting an interview by an asylum officer.” This means that as of July 31, the current affirmative asylum backlog was about 348,691 cases (meaning 348,691 cases were filed but not yet interviewed). Contrast this with the last time USCIS posted statistical information about asylum cases, which was for the period ending on September 30, 2019. At that time, the backlog stood at 339,836 cases. If all this data is correct (and I am never completely confident in the information we receive from USCIS these days), the backlog has grown by about 9,000 cases between October 1, 2019 and July 31, 2020.

If we believe these numbers, this means that the backlog grew faster in FY2019 than it did in FY2020. This may or may not be surprising, depending on your perspective. On the one hand, given that so few cases are being interviewed this year thanks to the pandemic, we might have expected the backlog to have grown more quickly. On the other hand, given that fewer asylum seekers are making it to the U.S., we might have expected the backlog to grow more slowly.

Finally, with regard to statistics, USCIS’s numbers indicate that 22,257 cases have been interviewed and are awaiting a decision. This seems like a lot to me, especially since Asylum Officers are interviewing fewer people because of the pandemic, and you’d think they’d have more time to finish cases that have already been interviewed.

Turning to the new rule itself, basically it means that when you go to an asylum interview, the government will provide you with a contract interpreter, who will attend the interview by phone. According to the new rule, “contract interpreters are carefully vetted and tested [and they] pass rigorous background checks as well as meet a high standard of competency.” In my experience, the contract interpreters are quite good, and I have never had a case where an interpreter caused a major problem. Prior to the new rule (and the coronavirus), applicants were required to bring their own interpreter, who assisted in person, while the contract interpreter monitored the interview by phone. Now, you are not allowed to bring your own interpreter, and you must use the telephonic interpreter.

Not all languages are covered by the new rule, but many are. USCIS contract interpreters are available for 47 languages. If your language is not on the list, you must bring your own interpreter.

If a contract interpreter is not available, the interview will be rescheduled and the delay will be attributed to USCIS for Employment Authorization Document (“EAD”) purposes (meaning that the Asylum Clock will not stop). On the flip side, if the applicant refuses to proceed with a USCIS contract interpreter, the Clock will stop, which will delay the EAD.

The new rule raises a few concerns. Probably the primary concern is whether asylum applicants will be comfortable with their interpreters. Will a woman who has been the victim of gender-based violence be comfortable if her interpreter is a man? I have heard anecdotally (and I believe it) that Asylum Officers are sensitive to this issue, and will check with the applicant before starting the interview. Also, if you prefer a male or female interpreter, you might ask in advance by emailing the Asylum Office before your interview. My sense is that the Asylum Office will do its best to accommodate such requests.

Another concern is that telephonic interpreters cannot as easily understand the applicant (or the Asylum Officer) and may not be able to convey emotion or nuance as well as they might if they were present in person. While I suspect that this is true, I think it is unlikely that missing such subtleties will make a difference in the outcome. Also, given the pandemic and the need for social distancing, it seems to me that we all need to make some adjustments.

All that said, how can you best work with a telephonic interpreter? Here are a few tips from a star interpreter, who has herself performed telephonic interpretations–

  • Keep your voice loud and clear. While this is important when working with on-site interpreters, it is even more important over the phone.
  • If you have a long statement, pause after a sentence or two so the interpreter can translate your words. After the interpreter is done, continue your response.
  • Don’t shuffle papers as you speak; you might as well stop talking because the interpreter will not be able to hear you.
  • Try not to talk over other people. The interpreter can only translate for one person at a time. Over the phone, it will be impossible for the interpreter to understand what is being said if people talk over each other. This could result in a statement by the applicant going unheard by the Asylum Officer–with potentially disastrous consequences.
  • Wait for the interpreter to finish interpreting before making another statement or asking a question.
  • If you don’t hear or can’t understand the interpreter, speak up!

All good advice to keep in mind at your interview.

Overall, my sense is that this new rule is reasonable and will hopefully allow more applicants to start attending interviews, while keeping everyone as safe as possible. 

Tip o’ the fedora to Professor Lindsay M. Harris, Director of the Immigration & Human Rights Clinic at the University of the District of Columbia, and interpreter extraordinaire Maria Raquel McFadden, for their contributions to this article.

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Re-Thinking the Master Calendar Hearing in the Time of Coronavirus

by Jason Dzubow

The Master Calendar Hearing–where dozens of people are squeezed into a room and forced to wait for hours in order to talk to a Judge for two minutes–has always been a headache and a waste of time. Now, though, as the coronavirus pandemic continues unabated, attending an MCH seems downright dangerous (lucky for us, we have an associate attorney who covers our MCHs – Don’t forget to wash your hands when (if) you get back!). I’ve written before about alternatives to the MCH, and given the expanding pandemic and the need for social distancing, now seems a good time to re-visit some of these ideas.

Before we get to that, I should mention that MCHs are not the only place where groups of non-citizens are packed together against their will. Far worse are our nation’s ICE detention facilities and private prisons, where conditions were already quite bleak (in the two years before the pandemic, 21 people died in ICE custody). Unfortunately, ICE has not taken effective action to protect detained asylum seekers and other non-citizens from the pandemic (at one facility in Virginia, for example, nearly 75% of detainees tested positive for COVID-19), and the agency seems to have little regard for the health of its detainees (or staff). As a colleague aptly notes, Anne Frank did not die in a gas chamber; she most likely died from typhus, which was epidemic in her detention camp.

Also, it’s worth noting that the National Association of Immigration Judges (the judges’ union) has been working hard for safer conditions in our nation’s Immigration Courts, even if EOIR management has been hostile to some of those efforts. Currently, non-detained MCHs have been suspended, but so far, there is no EOIR-wide policy for what to do instead. Some Immigration Judges and individual courts have made it easier to submit written statements in lieu of MCHs, but the process is still needlessly awkward and time consuming.

MCHs are no more efficient today than they were in olden times.

While we need a short-term fix so that MCHs can go forward during the pandemic, here I want to talk about longer-term solutions. Below are a few ideas for replacing in-person MCHs. While these ideas may not work in all cases, they will help most respondents (and their attorneys) avoid attending MCHs. This would save time and money for people in court, and would also save time and resources for the courts themselves, and for DHS. In addition, reducing the need to appear in person would help prevent the spread of disease. In short, doing away with MCHs is an all around win. So without further ado, here are some ideas to get rid of those pesky Master Calendar Hearings–

e-Master Calendar Hearings: EOIR–the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts–has been working towards electronic filing for decades, and in some courts, limited online filing is available. Given that the infrastructure is being put into place for online filing, EOIR should create an online MCH. There already exists a system for written MCHs, but this is a huge pain in the neck. It involves a burdensome amount of paperwork, and judges don’t always respond to the documents we file. This means that we lawyers do double work–we submit everything in writing and we have to attend the MCH. Given how unreliable it is, many attorneys (including yours truly) would rather attend the MCH than try to do it in writing.

An effective and reliable e-MCH would be easy to use and efficient. Most cases fit a clear pattern: Admit the allegations, concede the charge(s), indicate the relief sought and language spoken, designate the country of removal, and obtain a date for the Individual Hearing. For attorneys and accredited representatives who are registered with EOIR, this could all easily be accomplished through an online form, thus saving time for all involved.

Orientation Sessions for Unrepresented Respondents: One difficulty during the typical MCH is attending to unrepresented respondents. People who come to court without a lawyer tend to take more time than people who have attorneys. This is because the attorneys (usually) know what is expected at the MCH and are (hopefully) ready to proceed. For people without lawyers, the Immigration Judge (“IJ”) needs to explain what is going on, often through an interpreter. All this takes time and seems like busy work for the IJ (who often has to repeat the same litany multiple times during each MCH). Why not provide pre-MCHs with court staff instead of judges? There, unrepresented respondents can received a basic orientation about the process and be encouraged to find a lawyer. These sessions could be organized by language. Respondents who indicate that they will return with a lawyer can be given a deadline by which the lawyer can either submit the necessary information online (if e-MCHs have been implemented) or come to court if need be. Respondents who will not use a lawyer can be given a date to return for an in-person MCH with a judge. Even if e-MCHs are not implemented, having an orientation session would save significant time for judges and would make MCHs more efficient.

Empower DHS: In Immigration Court, the “prosecutor” works for the Department of Homeland Security (“DHS”). Most DHS attorneys are overwhelmed and overworked. They have little time to review cases in advance or to speak with opposing counsel prior to the MCH or the Individual Hearing. What if there were more DHS attorneys? What if we could pre-try cases, narrow issues, and maybe even hold depositions? If issues could be hashed out ahead of time, we could shorten or eliminate the need for a MCH, and we could make Individual Hearings more efficient.  

All this seems pretty basic. The Immigration Courts are overwhelmed. Reducing or eliminating MCHs will free up judges to do substantive work. It will also save time for DHS, respondents, and their attorneys. And of course, given our new normal with the coronavirus, it will help keep everyone safe. Changes to the MCH system are long overdue, and are especially urgent due to the pandemic. Let’s hope that EOIR can finally rise to the occasion. 

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Let’s Deny Asylum to Sick People!

by Jason Dzubow

Horace Walpole famously observed that the world is a comedy to those who think, and a tragedy to those who feel. That about sums up my view of the Trump Administration’s immigration policies: They are so ludicrous and so removed from reality that they would be funny if it weren’t for the fact that people are dying. The most recent proposed regulation neatly fits into this dichotomy; it is as absurd as it is harmful.

Using the pandemic as an excuse, the Administration proposes expanding an existing bar–applicable to aliens deemed a “danger to the security of the United States”–to deny asylum to “aliens who potentially risk bringing in deadly infectious disease to, or facilitating its spread within, the United States.” As usual, the main targets of this latest policy are aliens seeking asylum at the Southern border, but other applicants might be effected as well. Also, unlike some of the prior bans, this one specifically targets non-citizens seeking protection under the United Nations Convention Against Torture. 

Let’s start with the law. Under the Immigration and Nationality Act (“INA”), there are several “bars” to obtaining asylum. These bars prohibit granting asylum to aliens who (1) “ordered, incited, assisted, or otherwise participated” in the persecution of others on account of a protected ground; (2) were convicted of a “particularly serious crime”; (3) committed a “serious nonpolitical crime outside the United States”; (4) are a “danger to the security of the United States”; (5) are involved in terrorist-related activities; or (6) were “firmly resettled in another country prior to arriving in the United States.”

Gesundheit! That’s German for “Asylum Denied.”

Do you notice anything about these different bars? Except for number 6, they all involve people doing bad things. While “danger to the security of the United States” could theoretically be interpreted to include sick people, when considered in relation to the other bars, that interpretation doesn’t make a lot of sense. Indeed, there is a principle of statutory construction called ejusdem generis, which basically says that when you have a list that contains a vague term, you should interpret that term consistent with other items on the list. The BIA famously invoked ejusdem generis (and called it a “well-established doctrine”) in Matter of Acosta, when it interpreted the meaning of particular social group. So it seems more than a small stretch for the Trump Administration to define “danger to the security of the United States” in such broad terms, and we can hold out some hope that this provision will be struck down because it violates the INA (and, by the way, the proposed regulation invokes similar logic to try to block people from obtaining Withholding of Removal). 

Assuming the new rule goes into effect, what constitutes a danger to security? According to the proposed regulation, “In determining whether there are reasonable grounds for regarding an alien or a class of aliens as a danger to the security of the United States… the Secretary of Homeland Security may consider whether the alien exhibits symptoms consistent with being afflicted with any contagious or infectious disease or has come into contact with such disease, or whether the alien or class of aliens is coming from a country, or a political subdivision or region of that country, or has embarked at a place, where such disease is prevalent or epidemic.” So if an alien seems sick, or if she traveled through an area that the U.S. government believes contains an epidemic, she will be barred from asylum. Worse, this regulation gives the government the power to bar a “class of aliens” from asylum. Presumably, that would be aliens from a particular country, or who passed through a particular area.

While this rule applies to all asylum seekers, I suspect that if it is implemented, it will mostly affect those who arrive at the border (or an airport) and request protection. Such aliens undergo a credible fear interview (an initial evaluation of asylum eligibility). If the alien “passes” the credible fear interview, he can present his claim to an Immigration Judge, who then grants asylum, some other relief, or orders the person deported. Up until now, the asylum bars did not apply to credible fear interviews. However, under the proposed regulation, an alien subject to a bar would “fail” the credible fear interview and likely be deported. This means that if an alien comes from, or passes through, an area where an epidemic is prevalent, or if she appears sick, her request for protection in the U.S. will be automatically rejected. 

Let’s think about this for a moment. Under this new rule, if a person was imprisoned, beaten and raped due to her political opinion, and then she escapes her country, she will be denied protection in the United States and sent home simply because she traveled through an area that is experiencing an epidemic. Even if she herself is not sick! How nice.

One last element of this proposed regulation that I want to discuss is the rule related to Convention Against Torture (“CAT”) relief. Under the CAT, the U.S. cannot return a person to a country where he will be tortured. There are essentially no exceptions to this rule. But the proposed regulation seeks to change this–

If the alien makes this showing [that he is more likely than not to suffer torture in the home country], then DHS can choose in its discretion to place the alien in [Immigration Court] proceedings… or return the alien to a third country under appropriate standards.

In other words, when the alien arrives at the border to request protection, she must show that it is “more likely than not” that she will be tortured in the home country. This is a very high standard of proof for someone just arriving in the U.S. who likely does not understand the asylum system or have access to a legal counsel. Further, even if the alien somehow manages to demonstrate that she will be tortured in the home country, DHS can simply choose to send her to a third country (and this can happen–the Trump Administration has bullied or convinced Guatemala to accept some asylum seekers). Basically, we get to wash our hand of our responsibility to protect torture survivors.    

The only saving grace here is that this regulation is so poorly thought out that it is susceptible to a court challenge. Also, it seems to me that there is a much easier way to determine whether an asylum seeker is a “danger to the security of the United States” due to disease: Give him a test for that disease. If he is negative, there is no reason to bar him from asylum. If he is positive, maybe–I don’t know, this may sound crazy–help him get better. Treating human beings humanely. Sadly, it’s a novel concept in Trump’s America.

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Asylum Offices and USCIS Will Start Reopening Next Week (Maybe)

by Jason Dzubow

As you might have noticed, USCIS offices have been closed for all in-person appointments–including asylum interviews and biometric appointments–since March 18, 2020. Now, USCIS has announced that it “is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4.” What does this mean? What will the “new normal” look like at USCIS? Are we all going to die?

The first thing I notice about the USCIS announcement is that it is kind-of vague. “Some domestic offices” will reopen? I am not sure what this means. I suppose we will have to wait and see which offices actually reopen. Also, “on or after June 4” could be next week or it could be in 2099. In any event, it seems clear that USCIS is trying to get things moving again. Indeed, one of my clients is scheduled for an interview on June 29 in the Arlington Asylum Office and I have heard of other applicants receiving notices for interviews there as well. 

An Asylum Division manager explains how they will reopen their offices.

Second, it seems that the new interview process will be a bit different than what we are used to–

In accordance with social distancing guidelines, and due to the length of asylum interviews, asylum offices expect to conduct video-facilitated asylum interviews, where the applicants sit in one room and the interviewing officer sits in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter and representative can fully and safely participate in the interview while maintaining social distancing.

This short description raises a few concerns related to (1) safety, (2) due process, and (3) security. In terms of safety, if the Asylum Officer is in his own room, that seems relatively safe, at least for the officer (though the officers still need to get to work and stay healthy in an environment with many coworkers). For the applicants, the situation is less clear. Presumably, they will have to wait in a waiting room. In normal times, we often spend considerable time waiting, as interviews are often delayed–sometimes for hours. I suppose applicants could be sent outside (to wander aimlessly?) and then contacted by phone when the officer is ready to see them. This would at least avoid overcrowding in the waiting area. Also, normally, asylum applicants have their fingerprints and photo taken when they check in to the interview. This often entails waiting in line while a staff member struggles with a fussy computer. Whether the offices have sufficient space to “social distance” while waiting to check in, I do not know.

During the interview, applicants are entitled to bring an interpreter and a lawyer. Will all those people share a room? No offense to my clients, but this is not very comforting. Will each of us have our own room? That seems to be the plan, at least in Virginia. Due to security concerns, Asylum Officers never left us unattended during interviews, even for a second, and so I am guessing that they will need empty rooms to put us into. But the rooms won’t be completely empty, since we will need video equipment (and hopefully chairs), and so I am not sure how that will work. Also, what stops us from leaving the room and wandering the halls of the Asylum Office (I myself might go in search of the mythical room where all my lost files are located). And where are they going to get all those empty rooms? My guess is that the “new normal” will involve far fewer interviews than the old normal, but I suppose the powers-that-be figure some interviews are better than none.

Another concern is due process. Asylum seekers are entitled to a fair procedure. I know from my experience in Immigration Court that video hearings are more difficult and less fair than in-person hearings, and I imagine the same will be true of asylum interviews. There is much that is easier in person. For example, at the beginning of the interview, the officer reviews the I-589 form and makes corrections. Sometimes, the officer wants to look at documents with the applicant. These things will be difficult to do if the officer and the applicant are in two different places. Also, if the lawyer, interpreter, and applicant are in different rooms, communication between them will be more challenging. Aside from this, it is simply more difficult to talk to a person by video (as we all now know from innumerable, interminable Zoom chats). This difficulty will be compounded if the applicant is wearing a mask, which may be necessary in the event she shares a room with her attorney or interpreter. All these protective measures will make it more difficult to interact with the Asylum Officer and will make an already stressful situation worse. In short, under the current circumstances, there will be significant barriers to receiving a fair adjudication.

An additional concern is security. Will the video equipment be secure, or might it be hacked by nefarious actors who want to harm asylum seekers? I do not know, but the federal government’s track record here is mixed, and for people seeking asylum, confidentiality is an important concern.

How does USCIS plan to keep asylum applicants safe? The agency has issued the following guidelines for entering USCIS facilities–

  • Visitors may not enter a USCIS facility if they:
    • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
    • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
    • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
  • Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
  • Hand sanitizer will be provided for visitors at entry points. 
  • Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities. Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph. There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
  • Individuals are encouraged to bring their own black or blue ink pens.

My local office (Arlington) announced that telephonic appearances are not permitted for applicants because the Asylum Office must check identification. Also, the Asylum Office does not have any procedures for attorneys to appear telephonically (strange, since they do have telephones). All documents must be submit at least 72 hours before the interview, as there is apparently a new policy that requires 72 hours to pass before anyone can touch incoming mail. Finally, the Asylum Office will have a “very liberal” rescheduling policy, and so applicants can reschedule by email. Whether these same changes will apply at other offices, I do not know, but I imagine that all offices will follow similar procedures.

Like every other organization trying to reopen, USCIS is engaged in a difficult balancing act. How can they fulfill their mission and keep people safe? In my opinion, at the moment, they cannot do both. Given all the restrictions and contortions needed to make interviews happen, I expect they will only be able to interview a token few applicants. Under those circumstances, I do not see how it is worthwhile to endanger their staff and clientele (and anyone who comes into contact with them).

On the other hand, I know that many asylum seekers would be willing to take the risk. Not because they are reckless, but because they are so desperate to have their cases resolved and to reunite with family members. I can’t blame them for this.

There is no easy resolution to the dilemma. I hope USCIS will move cautiously, and I hope they will be able to keep people safe and provide them with fair interviews. We shall see.

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An Asylee on the Front Line of the Pandemic

by Jason Dzubow

I first met David (not his real name) in 2012. He had come to the United States from a Middle Eastern country and decided to seek asylum here. At the time, many democracy activists from his country were fleeing a government crackdown. One of David’s family members—a prominent member of the pro-democracy movement—referred him to me. David is a member of a religious minority, and he is a Biomedical Engineer by training. In his home country, he and his family members faced some pretty harrowing instances of persecution on account of their religion and their democratic leanings.

Fortunately, David’s asylum case was granted. He later became a lawful permanent resident, and he is currently in the process of becoming a U.S. citizen.

Police officers pay tribute to David and other hospital workers.

In the mean time, he obtained his equivalency degree, which allows him to work in his field in the United States (this is a somewhat obnoxious process, whereby a private agency certifies that a foreign degree “is equivalent to” a degree from an institution in the U.S.). He got a job as a Biomedical Engineer at a large hospital in the United States, and was promoted several times over the course of a few years.

When the pandemic started, David was tapped to lead a medical equipment project at the hospital’s command center, and to build up a new department to deal with the crisis. He and his team are working around the clock to receive, assemble, build, inspect, and install equipment such as ventilators, IV pumps, bed side monitors, servers, and more.

Fueled by obscene amounts of espresso, in one week, David and his team installed and uploaded drug libraries for 1000 IV pumps and installed 600 IV poles. They also installed and inspected more than 200 ventilators and 200 ICU beds. In addition, to get ready for COVID-19 patients, they prepared and installed medical equipment–such as central bedside monitors, ICU beds, nurse call devices, and ventilators–for three new departments at the hospital. All this while working in an environment where the coronavirus is a ubiquitous threat.  

Medical equipment prepared by David and his team.

I asked David how he feels about all that he has accomplished since the pandemic began, and despite the difficult circumstances, he uses words like “great” and “awesome” because, he says, he is not just doing a job, he is really helping to save lives. Also, he is proud that even though he has only been at the hospital for a few years, he is responsible for critical parts of the mission and for training a team that is working through the pandemic.

David’s work is incredibly impressive. He is helping to save many lives. But the fact is, he is not all that unique. According to a 2019 study in Health Affairs, 1 in 4 healthcare workers in the United States is foreign-born. It’s ironic that at a time when immigrants and asylum seekers are under assault by the federal government, they are playing such an outsize role in our fight against the coronavirus. I only hope that more Americans will come to appreciate how people like David are selflessly working to protect Americans from the deadly pandemic.

Espresso kept the team going.

One final point, and I think this speaks to David’s character and his bravery during this difficult time. I remember when we were preparing his asylum case, I asked him about whether he faced any harm in his country. He mentioned a few incidents and could not think of anything more. Then, his relative asked, “Didn’t the extremists shoot you?” Yes, he responded, they did try to shoot him, but the bullet passed over his shoulder and hit a wall behind him. Since they missed, David hadn’t really paid much attention to the incident. I imagine that this type of grace under fire (literally) is serving him well in his current role.

If you would like to support David in his life-saving work, consider making a donation to Direct Relief, a national non-profit that has been helping to get protective gear and critical care medications to as many health workers as possible.

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The Executive Order “Suspending Entry of Immigrants”

by Jason Dzubow

When the President issues an executive order, he first enlists experts to review the data and determine the exact nature of the problem. He then commissions a study to examine possible solutions and look at the pros and cons of each option. He carefully considers the law and takes into account dissenting points of view. His staff then crafts an order to achieve the desired ends, while avoiding as many negative externalities as possible.

I’m joking of course.

In the case of the new Executive Order, President Trump issued a late-night Tweet. Then, his staff, caught by surprise, scrambled to implement their boss’s vision and voila! An Executive Order was born.

America: Banning immigrants since 1882 (hows that working out for you?).

The new EO, issued yesterday evening, is based not on the Trumpian trope that immigrants bring disease. Rather, the order is justified based on the current economic crisis. Indeed, the title of the EO is Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. This was probably a wise move, as we are now the epicenter of the pandemic, and so it would be difficult to justify keeping people out of our country due to health concerns. The economic justification, on the other hand, will be easier to defend (recall that under the Administrative Procedures Act, courts can block a regulation that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law”). While there is ample evidence that immigrants start more businesses than native born Americans and that 51% of start-ups worth $1 billion or more were founded by foreign-born entrepreneurs, there is some (less convincing) evidence that immigration depresses wages for certain groups, such as blue collar workers. But given the low threshold of the Administrative Procedures Act, this is probably enough of a justification for the EO to pass muster, particularly in the Supreme Court, which has been very deferential to the President’s authority vis-a-vis immigration.

So let’s talk about what the EO does and–more importantly–what it does not do.

First, who is blocked from obtaining a Green Card? As far as I can tell, the only people blocked from obtaining a Green Card are those who are currently overseas and who currently do not have a U.S. visa or other travel document. Essentially, this means that U.S. Embassies will stop issuing new travel documents for immigrants to come to the United States. For immigrants who already have their visa or travel document, they can still come to the U.S. Also, spouses and unmarried, under-21 year old children of U.S. citizens are excepted from the ban and can still immigrate to the United States. Other relatives, such as parents, siblings, and older children of citizens are blocked. Also blocked are family members of Green Card holders and most people seeking residency through employment. However, the ban does not apply to medical professionals and their immediate family members, EB-5 investors, adoptees, spouses and children of members of the military, aliens entering on a Special Immigrant Visa, and aliens whose admission is in the national interest or who are assisting a law enforcement investigation. In short, this is a fairly narrowly-tailored suspension of immigration, though for those people who are blocked, it will be difficult.

Second, how long does the “suspension” last? The EO indicates that it will remain in effect for 60 days. After that, depending on economic conditions, it could be extended.

Third, it is important to understand who is not affected by the EO. People seeking non-immigrant visas are not affected. Permanent residents (i.e., people who already have a Green Card) are not affected, whether they are currently in the U.S. or overseas. No one who is currently inside the United States is affected by the EO. This includes permanent residents, asylum seekers, asylees, refugees, and people applying for immigration benefits (inside the U.S.), such as a Green Card or asylum (one exception here might be people who wish to leave the U.S. and return using a provisional waiver). Also, the EO has no effect on Employment Authorization Documents (“EAD”) or on the right to seek humanitarian protection. Indeed, the EO specifically states–

Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Fourth, there are still parts of the EO that are not clear. One important question is whether I-730 beneficiaries are subject to the ban. Based on the above language, my sense is that they will not be affected, but I am not sure. Also, I am not sure about K-1 fiances, but since the K-1 is technically a non-immigrant visa, I expect that fiance-beneficiaries will not be affected. Finally, the biggest question is whether the ban will end in 60 days, or whether it will be extended if–as seems likely–the economic crisis persists. A 60-day suspension of immigrant visas will be manageable for most effected people. However, if the ban is extended, the harm to families and business will increase significantly.

Given that embassies are already mostly closed, numerous travel restrictions are already in place, and many flights are canceled, I’d venture that the new EO will have very little real-world impact. What then is the point?

On its face, the EO is meant to protect American workers from foreign-born competitors, but given all the exceptions to the ban, I doubt the order will result in a significant drop in immigration (beyond what we’ve already seen as a result of the world-wide shutdown). Thus, even if you buy into the proposition that immigrant labor has a negative impact on the job prospects for U.S. citizens, I do not see how the EO will protect many American workers. 

If all this is correct, then the only remaining purpose of the EO is to frighten non-citizens and to delight nativists. Unfortunately, I suspect it will accomplish both of those goals. But to my immigrant friends, it is important to understand that for all its sound and fury, the Trump Administration has achieved little with this new Executive Order. Perhaps that fact can provide some level of comfort in these dark times.

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No More Immigration? Let’s Wait and See

by Jason Dzubow

In response to the pandemic, President Trump has Tweeted that he will “temporarily suspend immigration into the United States.” What does this mean? Does President Trump have the authority to suspend immigration into the country? Will the order affect people who are already here? How long will this “temporary” suspension last?

The answer to most of these questions is that we don’t yet know. While the President likes to announce policy changes on Twitter, the announcement should not be confused with the policy change. We will need to wait for the Executive Order to know the details of this plan. But speaking generally, it seems to me that the President probably does have the authority to suspend immigration during a health emergency. As my friend Alex Nowrasteh, Director of Immigration Studies at the Cato Institute, states, “Title 42 of the U.S. Code enables the president to halt immigration for health reasons, while a recent Supreme Court decision upholding his travel ban gives him unlimited authority on immigration.”

Since the U.S. has more cases than any other country, it obviously makes sense to block immigrants from coming here.

Also, the President has broad authority over immigration as set forth in the Immigration and Nationality Act. For instance, INA § 212(f) provides, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Another section, INA § 215(a) states, “Unless otherwise ordered by the President, it shall be unlawful… for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” These sections are quite broad, and have not been tested in court, but given the Supreme Court’s position on immigration in recent cases, it seems likely that an order suspending immigration into the country during the pandemic would be upheld.

In practical terms, though, I am not sure what the suspension actually means. For one thing, immigration is effectively already suspended, given that U.S. Embassies are generally not issuing visas and most flights are canceled. Also, there are existing restrictions on travel from many countries, including China and the EU. So whether an executive order actually changes anything, I am not sure.

Finally, in terms of the unknowns, it is important to wait for the actual Executive Order. Once we have that, we can analyze the legality of the order and any practical effects. Speculating about what the order will say is not helpful, and will likely only result in unnecessary stress. The Trump Administration has been targeting immigrants from the get go, and so this is just one more effort in that direction. We do not know whether the order will impact people already in the U.S. who are seeking status (asylum seekers or applicants for permanent residency). We also do not know if it will affect people with pending applications or applications for work permits. We do not even know if the order will affect people seeking to enter the United States with a non-immigrant visa. Indeed, we know nothing except what was contained in one late-night Tweet.

The fact is, while the President has broad authority over immigration (especially given the deferential position of the Supreme Court), that authority is not unlimited. Under the Administrative Procedures Act, courts can block a regulation that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” So for example, while there may be a rational basis to prevent people from coming into the United States during the pandemic, it will be harder to justify denying asylum or a Green Card to people who are already here (aside from that, given the time frame for most applications, the pandemic may be long over before they are adjudicated).

In short, despite the President’s ominous Tweet, we need to remain calm. It’s unlikely to make any real difference in the short term, and when the pandemic eases, which it inevitably will, the justification for an order limiting immigration will be much weaker.

It is truly unfortunate that our President seems only to have one solution for every problem: Blame foreigners. In the mean time, our country has become the epicenter of the pandemic, with more cases and more deaths than any other nation. Yet another attack on noncitizens will not help our economy and will not keep us healthy. For now, we will have to wait to see what the Executive Order says, but regardless, we the people must continue to support each other and to stand together against the coronavirus and against the unjust attacks on our noncitizen neighbors. 

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The Coronavirus Is Divine Punishment for Our Sins

by Jason Dzubow

There’s a long tradition in the U.S. (and around the world) of blaming minorities for natural disasters. Conveniently, the people targeted for this type of scapegoating are usually powerless, and are often already despised by the people doing the blaming. The present pandemic is no exception. A clergyman who teaches Bible classes at the White House recently posted a piece, asking in response to the coronavirus, Is G-d Judging America Today? The predictable answer is yes, and the predictable reason is related to “sins” such as “environmentalism” (gasp!) and “homosexuality” (double gasp!). 

But how do we know which sins result in divine punishment? And what communal penalty is appropriate for a particular sin? Was 9-11 heavenly retribution for abortion (per Jerry Falwell)? Did Hurricane Katrina devastate New Orleans in retaliation for that city’s support of a gay pride parade (John Hagee)? And was Hurricane Harvey sent to drown Houston because it elected a lesbian mayor (Kevin Swanson)?

I’m not normally a fan of attributing natural disasters to human sins, but since it’s Passover–a holiday where we remember ten plagues visited upon the Egyptians for enslaving Jews–I thought I might give the whole “divine retribution” thing a try.

A group of Bible scholars protests the government’s treatment of asylum seekers.

And now that I think about it, the idea that G-d is punishing us with a virus doesn’t seem all that far fetched. After all, the Egyptians suffered boils, so there is obviously precedent for sending a disease to smite wrongdoers. But which sin would trigger a coronavirus pandemic? Certainly not the “sin” of homosexuality. That causes hurricanes. Obviously.

When you look at what’s happening in our country and the world, it seems pretty clear which sin is responsible for our current troubles–the sin of xenophobia. What’s that you say? You object? You say that xenophobia is not a sin? Let’s take a look at our handy Bible to learn more–

Exodus 12:49 – There shall be one law for the citizen and for the stranger who dwells among you.

Exodus 22:20 – You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt.

Leviticus 19:33-34 – When a stranger resides with you in your land, you shall not wrong him. The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt.

Numbers 15:14-16 – There shall be one law for you and for the resident stranger; it shall be a law for all time throughout the ages. You and the stranger shall be alike before the Lord; the same ritual and the same rule shall apply to you and to the stranger who resides among you.

Deuteronomy 27:19 – Cursed be he who subverts the rights of the stranger, the fatherless, and the widow.

Etc., etc., etc. You get the idea. We are commanded–repeatedly–to treat the stranger as we treat the citizen. Those who mistreat the stranger will be cursed. So the Biblical foundation for our current troubles is clear.

But as our President loves to point out, the coronavirus began in China. Are they guilty of xenophobia? Indeed. Not long after Xi Jinping came to power in 2012, the Chinese government started implementing a series of increasingly restrictive measures against the Uyghur ethnic minority. These include forcing as many as one million men, women, and children into “re-education” camps in order to change their political and religious thinking to be more aligned with Communist Party ideology. To students of the Passover story, the persecution of the Uyghurs sounds eerily familiar–

Exodus 1:8-10 – A new king arose over Egypt who did not know Joseph [a leader among the Israelites]. And [the king] said to his people, “Look, the Israelite people are much too numerous for us. Let us deal shrewdly with them, so that they may not increase; otherwise in the event of war they may join our enemies in fighting against us and rise from the ground.”

And so the pharaoh enslaved the Jews. The rest, as they say, is history.

What about the United States? We are now the epicenter of the disease. Why are we being subject to G-d’s wrath? The obvious answer is that we have failed to treat citizens and strangers in a like manner. We have wronged the strangers who live among us. How?

Even before President Trump came to power, our country treated non-citizens and citizens differently. There are good reasons for doing so, of course: National security, preserving the welfare state, assimilating new arrivals in an orderly way. But some of the differences seemed less-well grounded in sound public policy: Mass immigration raids, private prisons, limited due process. Since President Trump’s ascension, though, our immigration policies have been driven by lies and xenophobia: Separation of children from parents, dramatically reduced protections for certain asylum seekers (particularly women fleeing domestic violence), the Muslim ban, the virtual elimination of due process at the Southern border, the draconian and nonsensical public charge rule, expansion of expedited removal, and on and on. We’ve also been subject to plenty of lies about non-citizens: Asylum seekers are rapists, criminals, and fraudsters, refugees burden our economy, Mexico will pay for the wall. Not to mention the coddling of white supremacists in Charlottesville and elsewhere. All this has resulted in a terrifying and inhospitable environment for non-citizens in the U.S. today.

Thus, it’s painfully obvious that we as a nation are failing to love the stranger as we love ourselves (Leviticus 19:34), that we are wronging and oppressing the stranger (Exodus 22:20), and that we have different laws for the stranger and the citizen (Numbers 15:14). Given all this, it’s not surprising that we have been cursed (Deuteronomy 27:19). The coronavirus is the manifestation of this curse; it is divine wrath for our sin of xenophobia. I suggest we put on sack cloth and self-quarantine for two weeks to repent.

Of course, I don’t really believe that the pandemic is divine retribution for the sin of xenophobia (or for any other sin). However, it’s hard to escape the conclusion that our mistreatment of “the other” is making things worse. Why do certain Immigration Courts remain open, forcing non-citizens and everyone involved in the system to risk their health? Why are we continuing to detain asylum seekers in unsafe conditions, even those who do not pose a danger to the community? Why do we deny economic relief to some immigrants (health care workers, agricultural workers, service industry employees) who are on the front line of the fight against the disease and who are working to keep the rest of us safe and fed?

As I see it, there is great wisdom in the words of the Bible, which make clear that we are all in this together. We will succeed or fail against the disease not as citizens and strangers, but as people, united in our common effort. The coronavirus does not discriminate based on nationality or race. Neither should we.

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Some Asylum Seekers Will Qualify for a Stimulus Payment

by Jason Dzubow

In response to the economic disaster caused by the coronavirus pandemic, Congress has passed a $2.2 trillion aid package. Part of that package includes direct payments to individuals. Most U.S. citizens and lawful permanent residents will receive a payment, but what about asylum seekers and asylees?

First, for all potential beneficiaries, the payment is dependent on your income. From the Washington Post—

Individuals with adjusted gross incomes up to $75,000 a year will be eligible for the full $1,200 check. Reduced checks will go out to individuals making up to $99,000 a year (the payment amount falls by $5 for every $100 in income above $75,000).

Married couples are eligible for a $2,400 check as long as their adjusted gross income is under $150,000 a year. Reduced checks, on a sliding scale, will go out to married couples who earn up to $198,000. Married couples also will receive an additional $500 for every child under 17.

People who file as a “head of household” (typically single parents with children) are eligible for a $1,200 check if they have an adjusted gross income up to $112,500 a year. Reduced checks on a sliding scale are available for heads of household earning up to $136,500 annually. Heads of household will also receive an additional $500 per child under 17.

You can calculate how much you and your family will receive here.

“Imagine how much TP I could buy with $1,200.00!”

Second, assuming you qualify for the payment based on your income, you must also have a valid Social Security number. For married couples, it seems that both spouses must have SSNs. According to the Tax Policy Center, “If one spouse has an SSN, but the other does not, the couple is ineligible for the payment (there is an exception for military families).”

Third, you would have had to file taxes for 2018 or 2019. If you did not file, you are ineligible for the payment. However, if you were not required to file taxes in those years, you can now file a “simple tax return” in order to establish your eligibility for the payment (presumably, this means filing the IRS form 1040 or the 1040-SR if you are over 65 years old). For those who should have filed taxes in 2018 or 2019, but failed to file, you can file now and still qualify for the payment. The IRS urges people who file to include direct deposit banking information on their tax return, in order to facilitate the payment.

Also, if you need help with issues related to back taxes and filing, you may be able to get assistance from your local Low Income Tax Clinic (many of which are apparently still operating in some capacity through the pandemic).

Fourth, to qualify for the payment, you must be a U.S. citizen or a lawful permanent resident (i.e., a Green Card holder) (though some LPRs who have spent significant time outside the U.S. might not qualify for the payment). Others who reside lawfully in the U.S., such as asylees and asylum seekers, may also be eligible for the payment, as long as they are not “nonresident aliens,” as defined (in a very confusing manner) by the IRS. According to the Internal Revenue Service—

An alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test.

The Green Card Test states that an LPR is considered a resident of the United States for tax purposes (and is thus eligible for the stimulus payment) as long as he or she spent at least one day in the U.S. during the relevant tax year.

The Substantial Presence Test is a little trickier. For that, you need to have at least 31 days in the United States during the current year and 183 days in the U.S. during the three-year period that includes the current year and the two years immediately before that. However, when counting towards the 183 days, days in prior years count for less, according to the following formula—

A. Current year days in United States x 1 =_____days

B. First preceding year days in United States x 1/3 =_____days

C. Second preceding year days in United States x 1/6 =_____days

D. Total Days in United States =_____days (add lines A, B, and C)

If line D equals or exceeds 183 days, you have passed the183-day test.

So for example, let’s say you were physically present in the U.S. for 120 days in each of the years 2017, 2018, and 2019. To determine if you meet the substantial presence test for 2019, count the full 120 days of presence in 2019, 40 days in 2018 (1/3 of 120), and 20 days in 2017 (1/6 of 120). Since the total for the three-year period is 180 days, you are not considered a resident under the substantial presence test for 2019, and would likely not qualify for the stimulus payment. A word of caution here: I am not a tax lawyer (thankfully) and so there may be arguments to make here in order to qualify for the payment. If you do not receive the payment and feel you should have, you may want to seek help from a tax professional.

My sense from all this is that asylees and asylum seekers who have been here and paid taxes in 2018 and/or 2019 will likely qualify for the payment (unless they have spent substantial time outside the U.S., which is rare for such people). Asylum seekers and asylees who have been in the U.S. for a shorter period of time, or who did not have a work permit until recently (or who did not yet get a work permit) will likely not qualify for the payment.

If you do qualify, you should not have to do anything to receive the payment–it should be credited to your account or mailed directly to you. Some people–such as those who did not pay taxes in 2018 or 2019–may need to take action, as discussed above. Also, the IRS has created a webpage to provide updates and information about the stimulus payments. At present, the webpage is pretty sparse, but the IRS says it will be updated with additional information soon.

One final point, asylees and asylum seekers are not subject to the “public charge” rules that went into effect in February. Therefore, receiving this payment (or any other type of assistance, including unemployment benefits or means-tested aid) will have no effect on an asylum case, or on an asylee’s application for a Green Card. For non-asylees, it seems pretty clear that the stimulus payment and unemployment benefits would not impact the public charge analysis. Other types of benefits could create a public charge issue (again, this is for people who are not asylees or asylum seekers). Talk to a lawyer if you are not sure or need help with this.

To say the least, these are difficult times for everyone. But the situation is particularly hard on those who are most vulnerable, including many immigrants and asylum seekers. I hope that the stimulus program will provide help to those most in need, and that we will see better days ahead soon.

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The Asylum Seekers’ Guide to Surviving Coronavirus

by Jason Dzubow

The current pandemic is unprecedented in modern American history. Maybe the closest analog is the influenza epidemic at the end of World War I. My grandmother was hospitalized during that affair–in 1919, when she was just six years old–and I remember a story she told me about looking out the window and watching nurses walk up and down the alleyway with soldiers who had been blinded by mustard gas during the war.

Our society has changed a lot since those antediluvian days, but fear, uncertainty, and misinformation seem as pervasive today as in accounts of those earlier times. For me, I draw inspiration from my grandmother, Evelyn Weiss, who lived to be 92. I also feel inspired by my asylum-seeker clients, many of whom have lived through difficult, dangerous, and stressful times, and gone on to build meaningful and successful lives.

For most of us, I daresay, this is a confusing and frightening time. But for non-citizens living in the U.S., far from their support systems and possibly with limited English, I imagine the situation is even more challenging. This is particularly true for people with pending cases, whose status in the U.S. is not secure.

A couple weeks at home with my family. What could go wrong?

Here, I want to provide some resources for asylum seekers and other non-citizens who are navigating life in the age of coronavirus. One word of caution–the situation with regards to the virus and the government’s response is rapidly evolving. For that reason, rather than post much about what is happening now (information that likely will be stale in a few hours), I have focused below on providing links to government websites and other resources, which may be of use. So check those pages, as they should provide up-to-date information about the ongoing crisis.

Immigration Court Cases: As of late last night, all non-detained hearings have been canceled through April 10, 2020. When those cases will be rescheduled, we do not know.

If you have a case scheduled after April 10, 2020, you can check whether your hearing will go forward online or by calling 800-898-7180 and entering your Alien number on the phone keypad. You can also check whether particular courts are closed or partially closed, here. If you are still unsure, you can call the court directly and try to talk to a clerk (this is not always easy). 

For detained cases or cases scheduled after April 10, 2020, you may be able to postpone your hearing, if necessary. To do that, you (or hopefully, your lawyer) would file a motion for a continuance. Normally, this is a burdensome and uncertain process, though presumably if the emergency persists, most Judges will be flexible about honoring such requests (though not all Judges are so cooperative).

If you are without an attorney and you need help with your case, there may be pro bono (free) assistance available. I wrote about that here. 

If you are interested in learning about the dangers facing detained asylum seekers (most of who have no criminal issues), here is a good piece from NPR.

Asylum Office Cases: As of this writing, Asylum Offices will be closed to the public until at least April 1, 2020. For interviews scheduled before that time, applicants will receive a cancellation notice, and the case should be rescheduled once normal operations resume (in normal times, rescheduled cases are given the highest priority for a new interview date, but I have not seen an announcement about how rescheduled cases will be handled during the emergency). In addition, there will be no in-person decision pick-ups. Instead, all decisions will be mailed out (so make sure that if you move, you update your address). If you need to inquire about your case status, you can do so by email–you can find the appropriate email address here. For any communication with the Asylum Office, make sure to include your name and Alien number. If you plan to submit additional evidence for a case, it is probably best to wait until normal operations resume, but if you must submit evidence, do so by mail (you can find the mailing addresses for the various offices here, but be careful, as some offices have different mailing and physical addresses).

Aside from in-person appointments, USCIS is making an effort to continue normal operations, and so presumably, you can still file new asylum cases and receive receipts (but biometric appointments are not currently being scheduled). Also, if you are eligible to apply for a work permit based on a pending asylum case, you should be able to do so.

Once normal operations resume, note that the Asylum Offices have a liberal postponement policy, and you are urged to postpone your interview if you do not feel well or you believe you might have been exposed to coronavirus. At least for the time being, there is no penalty for postponing a scheduled asylum interview, and it will not stop the clock for purposes of work authorization.

Other USCIS Cases: All in-person appointments with USCIS are canceled until at least April 1, 2020. This includes interviews, biometric appointments, and naturalization oath ceremonies. However, USCIS is still operating, and so you can file new cases and receive receipts.

Once normal operations resume, you can cancel your appointment if that is necessary. For more information about canceling an appointment, see this link. USCIS states that there is no penalty for rescheduling, though we do not know the time frame for when cases might be rescheduled.

ICE Check-ins: For those required to check-in with ICE, the agency indicates that you should contact your local field office prior to your appointment. You can find that contact info here. It seems that different offices have different policies, and unless you can confirm in advance that reporting is not necessary, it is best to appear for any appointment. Hopefully, ICE will issue more useful guidance soon, as it is difficult to communicate with field offices, and they are endangering people (including their own workers) by failing to create a coherent plan.

Traveling Outside the United States: Advance Parole (“AP”) is a way for people with pending asylum cases to travel overseas and then return to the U.S. (I wrote about it here). Given the pandemic, you probably can’t get a flight out of the U.S. anyway, but if you can, it is probably a bad idea to travel with AP. Given the restrictions currently in place blocking people who have traveled through China, Iran, and the Schengen area, if you leave the U.S. with AP, you face the real possibility of being unable to return. If you are prevented from returning and your AP expires, there may be no way back to the country (except to apply for a new visa, and you know how hard that is).

For people who have asylum, you can get a Refugee Travel Document (“RTD”), which allows you to leave the U.S. and return. However, as I read the travel restrictions, I do not feel confident that people with an RTD will necessarily be able to return to the United States if they are coming from an affected area. There are exceptions to the travel restrictions–for U.S. citizens, lawful permanent residents, and several other categories of people–but there is no specific exception for asylees or refugees with an RTD. While it makes sense that such people can return to the United States, this Administration has taken a very hard line towards non-citizens, and without an explicit exception to the restriction, I think you have to be extremely cautious about leaving the country at this time, even with a valid RTD.

Healthcare: Healthcare for people without legal status in the U.S. has always been a challenge, but now the situation has become critical. If any one of us cannot get the health care we need, all of us are potentially affected. The fact is, there are resources available to everyone, even people who are not in lawful status or who have pending cases. If you need to find a health clinic, the National Association of Free and Charitable Clinics is a good place to start. On their website, you can find medical clinics based on your zip code. On a longer term basis, certain non-citizens–including asylum applicants–might be able to qualify for government-subsidized health insurance.

If you think you may have coronavirus, you can contact a government-funded health center. Such centers serve everyone, regardless of immigration status, and provide reduced-fee or free healthcare services. You can search here by zip code to find a health center near you.

If necessary, you can also go for help to the emergency room of your local hospital. From the National Immigration Law Center website–

Under federal law, hospitals with emergency rooms must screen and treat people who need emergency medical services regardless of whether they have insurance, how much money they have, or their immigration status. Similarly, anyone can seek primary and preventive health care at community health centers regardless of whether they are insured, their ability to pay, or their immigration status.

The NILC website has a list of additional resources for non-citizens in need of healthcare or assistance. Finally, the Center for Disease Control has advice about what to do if you are sick and about how to protect yourself from getting sick in the first place.

Unemployment Insurance and Other Assistance: If you are legally authorized to work and you lose your job, you may be eligible for unemployment insurance. Details about obtaining unemployment insurance vary by state, and you can learn more here. The federal government also provides helpful information about unemployment insurance.

In addition, some non-citizens may be eligible for other benefits, such as Supplemental Nutrition Assistance Program (SNAP, formerly known as the Food Stamp Program), nonemergency Medicaid, Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF). You can learn more about the legal requirements for such benefits here. To get help obtaining such aid, you might start by reaching out to a local non-profit that assists immigrants. Such organizations might be able to point you in the right direction.

Staying Safe: I am no health expert, but given that those in the know recommend “social distancing” as a way to check the epidemic, it seems to me that (after much dithering) USCIS and EOIR made the right call to postpone in-person appointments and non-detained cases (and hopefully, ICE will follow suit). For many people waiting for their cases, this is another blow, and will be very painful. Once the crisis abates, you can try to expedite your asylum office case, your USCIS case or your court case. Until then, stay safe and if you find any toilet paper, send it my way!

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