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If you’re reading this, maybe there’s still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end.
This is how the Immigration Court backlog ends.
I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could have—could still—turn out differently.
What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.
“What was it, then?!” you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity--a black hole, if you will--that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that's left is me and a few others. We don’t have much time.
It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didn’t they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration Court—No two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?
Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didn’t think it was a big deal. They were violating the alien’s due process rights, but only a little. And it was for a good cause—efficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen.
And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single day—November 29, 2019. They claimed this was some sort of “holding” date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind!
Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came.
EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didn’t. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose we’ll never know, and anyway, it doesn’t much matter.
The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn't only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B's, TN's, and L's, Q's and R's, H1-B's and E's, all varieties of A's and J's, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.
And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path--a black hole. But like I say, if you're reading this, there's still hope. There is a simple solution to the Immigration Court backlog. It's so obvious, that it's a wonder no one noticed it before. All you have to do is...
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Originally posted on the Asylumist: www.Asylumist.com.
If you have a case pending with the Asylum Office and you move, you are supposed to file a change of address (form AR-11) within 10 days. It should be that easy, but of course, these days at the Asylum Office, nothing is easy.
Does this count as a permanent address?
The first problem is that if you move and you file a change of address, it could affect your eligibility for an Employment Authorization Document ("EAD")--a work permit. Once your case is received by the Asylum Division, the "Asylum Clock" starts to count time. When the Clock reaches 180 days, you are eligible for an EAD (you can mail your EAD application after 150 days, but unless the Clock reaches 180 days, you will not receive the EAD). The problem is that if you do anything to cause a delay in your case, the Clock will stop and you won't get your EAD, at least not for a long time.
The Clock stops if you fail to appear for an interview or a fingerprint appointment, or if you move your case to a different Asylum Office--all these things are considered applicant-caused delay. Therefore, if you move, and the move results in your case transferring to a different Asylum Office, you may lose your opportunity to get an EAD (to see whether a particular move will cause your case to transfer to a new Asylum Office, you can check here).
In theory, the solution to this problem is easy: Don't move until after you receive your EAD. In reality, it is not always so simple. People who file for asylum often do not have stable addresses in the United States (they're refugees after all), and so it can be difficult to maintain a permanent address for long enough to receive the EAD. If at all possible, you should find a long-term address and use that address when you file your case. This will potentially save you a lot of trouble down the line.
For those unlucky few who must move their case to a different asylum office, you have to make a choice: Change your address--as the law requires--and likely lose the EAD (if less than 180 days have passed on the Clock), or violate the law by either keeping the old address (assuming you can still get mail there) or using another address within the jurisdiction of the original asylum office. If you choose to violate the law, you will probably get the EAD, but you could be subject to civil and criminal penalties (a fine and up to 30 days in jail), and it could affect the outcome of your asylum case ("So, Ms. Asylum-Seeker, you lied to us about your address. What else are you lying about?").
Another problem for people who change Asylum Offices is that the transfer can cause delay (though I've seen examples both ways - usually a move makes the case slower, but in other cases, it seems to make the case faster). It may also put you far away from the lawyer who initially prepared your case or other people who are assisting you. There is not much you can do about these things, but they are good to think about before you file the case.
A third problem occurs when you move for a temporary period of time. I see this a lot: People move to a new city for school or work, but they do not change their "permanent" address. In this case, it is sometimes difficult to know whether to file a change of address form. If you change your address again and again, you will potentially bounce around between different asylum offices and never get an interview. On the other hand, the Asylum Officer might be suspicious if you list your home address in one city, but you are working or studying in a distant city. When my clients make a "temporary" move, I advise them to keep as much of their documents at their "permanent" address as possible: Driver's license, tax documents, bank accounts, etc. Even so, it is unclear whether we are violating the law by not informing DHS about the temporary move. Indeed, the law itself (INA § 265) provides little guidance. At least in my experience, the Asylum Office is fairly lenient on people who make temporary moves, as long as there is evidence that they have maintained the permanent address.
As a lawyer, of course, I cannot advise anyone to violate the law by not filing a change of address form. But I would offer that if you are thinking about violating the law in order to get your EAD or keep your case from being transferred, you should talk to a lawyer first about your specific case. It may seem easy enough to not inform USCIS of an address change, but I have seen this play out at asylum interviews, and I recently almost had a big problem for one client who failed to inform USCIS about his change of address (let's just say I was chastised by the Asylum Officer, which made me feel kind-of bad (Jewish guilt and all that), but fortunately, the client received asylum).
In the end, the best way to avoid a problem is to file the asylum application using an address where you can remain for a while. In the days before the backlog, when cases only took a few months, this was not difficult. But now, like everything else related to asylum, it ain't easy.
Originally posted on the Asylumist: www.Asylumist.com.
Since the surge of asylum seekers arriving at our Southern border began in 2013, the number of people held in family detention has increased dramatically. Men, women (including pregnant women), children, and infants are kept in secure facilities—jails—while their asylum cases are adjudicated. There have been plenty of issues at these facilities: Allegations of physical, sexual, and psychological abuse by guards, inadequate food, suicide attempts. A recently-filed lawsuit claims that people are kept in freezing, overcrowded, and unsanitary cells. Many immigration advocates have been calling for an end to family detention, and recently 33 U.S. Senators signed a letter requesting a halt to the practice.
Powder blue is the new black.
On the other side of the debate are those who believe that family detention does not go far enough. They argue that allowing anyone to arrive at the border, request asylum, and then receive entre into the United States is an abuse of the system, a threat to our security, and an inducement to others—many others—to try the same thing. The restrictionists, led by several House Republicans, believe that permitting asylum seekers into the United States is tantamount to an open borders policy: Anyone who wants to come to the U.S. need only say the magic words—“I am seeking asylum”—and they will be granted admission.
Is this, then, our only choice? Either we detain everyone who arrives here until their cases are finally decided, or we throw open our borders to all comers?
I can imagine circumstances where it would be justified to detain arriving asylum seekers--including children--and I think it is worth exploring the possible justifications, and whether they are legitimate. Let's take a look at some of the reasons for family detention and whether they are justified:
1. Some of the people coming here are dangerous, and since we don't know who the bad guys are, we should detain everyone - Detaining an asylum seeker (or any arriving alien) who poses a danger to the U.S. is perfectly legitimate. Given how little we know about people seeking entry at the border, it makes sense to be cautious when releasing people from detention. But in the case of detained families, it is highly unlikely that mothers and children present a threat to our country's safety. For the most part, I don’t think the U.S. government views mothers and children as a security issue, and I don’t see how the widespread detention of such people can be justified on these grounds.
2. The only way to deter migrants from making the risky journey to the U.S. is to stop rewarding them with admission into our country – This argument at least has the pretense of concern for the migrants’ safety. Indeed, a bill floating around the House of Representative, which would make it more difficult for unaccompanied minors to seek asylum in the United States, is called the Protection of Children Act. Of course, the journey from Central America to the U.S. can be dangerous (though the danger is far less than that faced by asylum seekers who cross the Mediterranean to Europe). Despite its superficial good intentions, my feeling is that this argument is simply a pretext to keep people out. If lawmakers really cared about the fate of the young people coming to the U.S., they would ensure that each person receives a complete and fair hearing on the merits of her case.
3. Most Central American asylum seekers have weak cases, and so they will eventually be deported. If we allow them in, they will disappear and not abide by their removal orders – The validity of this argument depends largely on how frequently non-citizens abscond. As usual, we need more data to be sure, but Immigration Court statistics indicate that since 2005, only about 60.9% of minors appear for their court hearings (the appearance rate has improved somewhat in the last few years, and represented juveniles are much more likely to appear (92.5%) than unrepresented (27.5%)). Given that a significant percentage of unaccompanied minors will abscond, this seems to be a legitimate argument in favor of detention.
To make matters worse, many of the asylum seekers coming from Central America have weak cases and—assuming they appear for their hearings—they are likely to be ordered removed. While this argument presents a real challenge to immigration advocates, there is, I think, a more humane (and less expensive) response than jailing families.
Alternatives to detention ("ATD")--such as electronic monitoring, bond, and intensive supervision (via telephonic or in-person reporting)--are effective ways to improve court-attendance rates. A recent GAO report indicates that between 95 and 99% of aliens on one ATD program reported for their hearings (the report also indicates that more data is necessary to fully evaluate the program). If more resources were shifted from detention to ATD, it would likely become an even more effective method of ensuring aliens' appearance in court.
Also, while asylum cases from Central America are often legally weak, many of the applicants have a very legitimate fear of persecution in their home countries. The problem is that the fear of harm (from gangs, cartels or domestic partners) does not easily fit within a protected category for asylum. I remember one case where I did a bit of pro bono work: A gang member wanted to date the applicant’s sister. When the parents refused, the gang murdered most of the family. Applicant escaped the massacre and came to the U.S. An Immigration Judge denied asylum because the case did not fit into a protected category. That decision was ultimately reversed (by a federal court), but it illustrates the problem—just because you do not fit neatly into a protected category does not mean that you will be safe in your country. Because of the high stakes involved and the difficulty of demonstrating a “nexus,” asylum cases from Central America often need more—not less—attention from decision-makers and advocates. When applicants are detained and their cases are rushed through the system, it is often impossible to ensure that due process is respected and that we are fulfilling our humanitarian obligations (and sometimes, the results are deadly).
4. If we allow the migrants to enter, it will only encourage others to follow – Our geographic isolation has resulted in relatively few people seeking asylum in our country (compared with, say, Jordan, South Africa or Pakistan). This has allowed us the luxury of an elaborate (i.e., expensive) asylum system. Our system is not designed to handle large numbers of applicants, and indeed, the surge has threatened “the system” in at least two ways: (1) Delays throughout the system have become so interminable that many applicants simply cannot wait for a decision. Some are separated from close family members; others are under great psychological pressure. These delays—measured in years--have proved too much for many applicants, and they have left the country for fates unknown; and (2) The large numbers of arriving aliens have also attracted Congressional attention, and several bills have been introduced that would curtail the rights of asylum applicants.
The question here is whether detaining families and rushing court cases will deter would-be migrants, and thus save "the system."
As a general principle, I think it is a bad idea to deny certain asylum seekers due process in order to preserve the system for other asylum seekers. Part of the problem is that we have never had a real debate about who should qualify for asylum. Victims of gang violence and domestic violence are not traditional asylum seekers. Such people qualify for asylum as a result of creative lawyers pushing the boundaries of the law. Perhaps if there had been a rational policy debate about whether such people should qualify for asylum, or whether we should offer them some other type of humanitarian protection, we would not be faced with our current dilemma.
Finally, I doubt that the restrictionists will ever be satisfied with President Obama's efforts related to border enforcement. Trying to preserve the asylum system by appeasing such people is pointless. While I believe we need to decide, as a country, who we will offer asylum to, I am not convinced that detaining families will convince those who oppose the asylum system to change their minds.
In the end, while I believe there are reasonable arguments supporting family detention, I am not convinced. Given the alternatives to detention, we can better fulfill our humanitarian obligations and protect our borders without detaining families and children.
Originally posted on the Asylumist: www.Asylumist.com.
June 15, 2015 marks the 800th anniversary of the Magna Carta, a document signed by King John, which granted certain rights to English noblemen. Although the Magna Carta was executed under duress and was nullified by the Pope a month later (at John's request), it has become a foundational document of the American Constitutional system (our system, of course, derives from the English system).
The Magna Carta brought us Due Process of Law, and this lovely commemorative mug. Available wherever finer mugs are sold.
What is important about the Magna Carta is not so much the document itself, with its checkered history and its very limited application. Rather, it is the idea of the document that matters: The idea that even the king himself is subject to law and that the People can assert their rights against the sovereign. Indeed, the Magna Carta states--
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
In other words, the sovereign will not act against the subject without due process of law.
While apparently the idea of due process did not gain much traction at the time, it was later elevated to importance in England and the United States, and it is now fundamental to our system of justice. We are all (theoretically) entitled to a fair procedure before the government can assert its power against us.
Of course, it was not always this way. When our country was founded, most people did not enjoy many basic legal rights: Women, minorities, slaves, Native Americans, foreigners, indentured servants, to name the most obvious. Over time, and with much struggle, such individuals gained more legal protections.
But one area where the State retains great power vis-à-vis the individual is in immigration law: The sovereign state determines who will be admitted into the country and who will be excluded. The United States government is allowed to discriminate against arriving aliens. If we don't want to admit people from China into our country, we don't have to. If we decide to exclude Muslims, we can do that too. There is no Equal Protection clause for foreigners seeking admission to the U.S.
There are more Constitutional protections available to aliens physically present in the U.S. and in removal (deportation) proceedings, but even these protections are far less than those accorded to criminal defendants. Aliens in removal proceedings do not have a right to an attorney (unless they can afford to hire one). They do not have Miranda rights. They have no right to a jury trial or to see all the evidence against them. They have more limited Fourth Amendment (search and seizure) and Fifth Amendment (self-incrimination) protections than criminal defendants.
But one Constitution right that applies to aliens in removal proceedings is the Due Process clause: Aliens are entitled to a fair procedure, and--if that procedure is violated--they can petition the federal courts for redress. As the Supreme Court has held:
[T]he Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.
Because it is one of the few arrows in our quiver, immigration lawyers rely heavily on the Due Process clause, particularly in federal court litigation. The sovereign state has tremendous power to remove non-citizens from U.S. territory, but in doings so, it must comport with due process of law.
In some ways, modern-day immigration law mirrors the early days of domestic law in Great Britain. At the time of the Magna Carta, the king had great power compared to his subjects. Over the centuries, the power of the State has eroded in favor of granting more rights to the People. But this evolution has been far less dramatic in the area of international law and immigration law, where--in the United States--the Executive Branch largely retains plenary power. Perhaps in some more-civilized future, there will exist a system of international law that grants more power to individual immigrants and less power to sovereign nations. I can't help but think that that would be a good thing.
Originally posted on the Asylumist: www.Asylumist.com.
According to a letter from four members of Congress to DHS Secretary Jeh Johnson, a "recent disclosure [by USCIS] regarding the number of aliens found to have a 'credible fear' in cases where the terrorism bar to asylum eligibility may have applied raised the concern that hundreds of known and suspected aliens with terrorist connections may be attempting to take advantage of our country’s asylum system."
Eli Wiesel provided slave labor to the Nazis, so he may be subject to the terrorism bar.
The "recent disclosure" from USCIS to the House Committee on Oversight and Government Reform revealed that "the terrorism bar to asylum eligibility may be applicable to 299 aliens who were found to have a ‘credible fear’ of persecution in the first four months of Fiscal Year (FY) 2015, and to 339 aliens who were found to have a ‘credible fear’ in FY 2014." The four Congressman--Bob Goodlatte (R-VA), Jason Chaffetz (R-UT), Trey Gowdy (R-SC), and Ron DeSantis (R-FL)--requested more information about the 638 aliens in question, including each aliens' confidential A-file and whether and by what authority each alien was released from detention.
First, what's this all about?
When an alien arrives at the border (or at an airport), she can request asylum. Rather than admit her into the U.S., the alien is usually detained and scheduled for a "credible fear" interview--a preliminary evaluation of eligibility for asylum. The large majority of aliens "pass" the credible fear interview. Their cases are then transferred to an Immigration Judge and--in most, but not all, cases--they are released from detention. Aliens who do not pass the credible fear interview are deported.
In 638 credible fear interviews, conducted since October 2013, the alien said something or the U.S. government had some information that may have implicated a Terrorism-Related Inadmissibility Ground ("TRIG"). This could have been something relatively benign (the alien paid extortion money to a gang) or something of great concern (the alien is Osama bin Laden's best friend). We don't know--the TRIGs are very broad (as I've discussed here).
One piece of information that we do have is the list of countries that send us the most credible fear applicants: El Salvador, Mexico, Guatemala, Honduras, and Ecuador. These are not normally countries we associate with terrorism. However, these nations have major problems with gang and cartel violence, so we might suspect that many of the TRIG issues raised in credible fear interviews relate to paying extortion to criminal groups. Again, though, we really don't know.
So what's the solution? In their letter, the four Congressman request more information from DHS about the TRIG issues raised during credible fear interviews. This seems to me a perfectly reasonable request. We need to know more so we can better understand what is happening, who is coming here, and how we can make more appropriate policy decisions.
I do have a few concerns about the letter, however. At least some of the Congressmen making the request have demonstrated a clear bias against asylum seekers. Since everything these days is subject to spin, I worry that the Congressmen will use the data--no matter how benign--to stir up more anti-immigrant feelings and place further restrictions on asylum seekers. DHS should not let that happen. DHS can do its own evaluation of the data and release a report to the public (it would be difficult to make the raw data publicly available due to confidentiality issues).
Another concern I have is that the Congressmen are requesting the A-files for individual asylum seekers. Pursuant to 8 C.F.R. § 208.6, these files are confidential, though they can be shared within the government for legitimate purposes. While I believe that the Congressmen have no intention of breaching confidentiality, we do not know what safeguards they have put into place to protect the individual asylum seekers. Who will be reviewing the 638 files (that will be a big job)? Interns? Regular staff members? What training do they have? Do they have a security clearance? Where will the files be kept? How will the results of the study be released so as to ensure confidentiality for individuals? What will happen to the files at the end of the process? These questions need to be answered before DHS releases the A files to Congress.
Finally, the letter demands that the files be turned over before COB on June 3, 2015--two weeks after the letter was written. How the Congressmen expect DHS to gather this information and turn it over on time--while ensuring confidentiality--is beyond me. The seemingly impossible time frame attached to the letter detracts from its credibility. If the Congressmen are serious about gathering and analyzing this data (which is a very worthy goal), they should approach the problem in a more reasonable way. For example, they could involve the Congressional Research Service, which has the expertise to review and analyze raw data from USCIS.
I have written before that we need more data about who is seeking asylum in the United States, how they get here, why they are requesting asylum, and the decision-making process itself. Such information would make our country safer and our asylum system better. Congress has an important role to play in this process and so does DHS. Hopefully, for once, the two can play nice together and get the job done.
Originally posted on the Asylumist: www.Asylumist.com.