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Jason Dzubow on Political Asylum

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  1. Anti-Immigration Group Spies on Asylum Division, Lies About It

    Nayla Rush, a Senior Researcher at the anti-immigration Center for Immigration Studies, has apparently been spying on the USCIS Asylum Division - and lying about what she has overheard.
    I couldn't find a photo of Nayla Rush infiltrating the asylum meeting, but I assume it would look something like this.

    First, a bit of background: As you may know, the Center for Immigration Studies or CIS (not to be confused with USCIS - the United States Citizenship and Immigration Services) is a group that wants to restrict immigration to the United States. Their writers are usually intellectually honest, though not always. I often disagree with their policy positions, and I have written about them a few times (here, here, and here). They also occasionally write about me.


    Last week, I visited the CIS website and discovered Nayla Rush's post about attending the USCIS Asylum Division Quarterly Stakeholder Meeting on December 11, 2015. The meeting was for "Stakeholders" in the asylum system: Advocacy groups, lawyers, even--I suppose--people who want to restrict the asylum process. But the meeting is specifically not for the media. The invitation reads, "Note to media: This engagement is not for press purposes. Please contact USCIS Press Office... for any media inquiries."


    It just so happens that I also attended the meeting in question, which was led by the Asylum Division Director, John Lafferty. About 50 people were present, including USCIS staff, private lawyers (like me), and representatives of various organizations involved with asylum law.


    During the first part of the meeting, each person introduced himself and stated the name of his organization. If Ms. Rush introduced herself, I do not remember. But certainly she did not reveal that she was representing CIS - everyone there knows the anti-immigration group and her presence at the meeting would have raised some eyebrows.


    Ms. Rush also did not reveal that she was attending in her capacity as a journalist. Perhaps she hoped to discover some dirt or some secret conspiracy between USCIS and asylum advocates. Maybe she covertly recorded the meeting, Planned Parenthood-style, with the hope of exposing something nefarious. Apparently, she did not find anything too damning, but fear not--in the absence of evidence, you can always make stuff up.


    From the meeting, Ms. Rush claims to have learned that "Officers interview asylum seekers by phone in 60 percent of the cases (except for families who are already in detention centers)." In her piece, "Most Asylum Applicants Are Interviewed by Telephone. Feel Safer?", Ms. Rush notes that it's hard enough to assess an applicant's credibility, but if the officers cannot even look the applicant in the eye, fraudulent asylum seekers--including potentially dangerous people--can scam their way through the system. "Call me skeptical," she writes, "but I don't see how this subjective assessment [of asylum seeker credibility] can be obtained through a telephone conversation."


    So the premise of Ms. Rush's article is that 60% of asylum seekers are interviewed by phone. If this were true, it would be cause for concern. However, the actual number of asylum seekers interviewed by phone is more like 0%. That's zero. Zilch. Nada. None. In fact, every asylum applicant interviews in-person, face-to-face, with an Asylum Officer. So what is Ms. Rush talking about?


    My best guess is that she has confused (or deliberately conflated) asylum interviews and credible fear interviews ("CFI"). The purpose of an asylum interview is to determine whether an applicant may be granted asylum, and thus the legal ability to remain permanently in the U.S. The purpose of a CFI is to determine whether an applicant presents a prima facia case for asylum. If the applicant meets this minimal standard, she will then be sent to an Immigration Judge (or in the case of a minor, an Asylum Officer) to determine whether asylum should be granted. If the applicant fails the credible fear interview, she will be deported. Many credible fear applicants are interviewed by phone, but since this is only an initial evaluation of the case, and since the only purpose is to assess whether the person has articulated a fear of return to her country, credibility is not really a consideration. If the person "passes" the CFI and then presents her asylum case, she will have an in-person interview (or a trial) where credibility is carefully considered.


    From all this, it seems that Ms. Rush is either so unfamiliar with the asylum process that she confused two basic concepts (asylum and CFI), or she understands the asylum process and she is a big liar. My guess is that it's the latter. Why? Because the article is not the only instance of Ms. Rush's dishonesty when it comes to refugees.


    Take, for example, Ms. Rush's recent report on the UN's Role in U.S. Refugee Resettlement, where she claims that the "United States is entrusting the staff of the United Nations High Commissioner for Refugees (UNHCR) with the entire selection and pre-screening process of Syrian refugees eligible for resettlement in the United States" (the emphasis is mine). The implication is that the UN determines who comes to the U.S. as a refugee. This is completely false. The UN refers refugees to the U.S. government, which then independently screens them and performs background checks (I've written about this process here). Ms. Rush's fear-mongering and dishonesty about Syrian refugees suggests that her motivation is to score political points, regardless of the facts.


    Frankly, I am not particularly bothered by Ms. Rush attending the Asylum Division meeting under false pretenses and then writing about it. I happen to believe (like her, I think) that the system should be more transparent. What bothers me is that she would attend the meeting and then deliberately distort what she heard.


    As I have written before, there are legitimate arguments for limiting the number of refugees and asylum seekers we admit into the United States. We as a country should be discussing these issues, and organizations like CIS have an important role to play in that conversation. But when CIS distorts the facts in order to advance its argument, it impoverishes the debate and damages its own credibility. Hopefully, in the future, CIS and Ms. Rush will be more responsible and more honest as we continue to discuss this important topic.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. Easing the Burden of Asylum Seekers... a Bit

    It's rare these days that I actually have good news to report from the Asylum Office, but recently there have been a few small improvements that are worth noting. These are not earth-shattering changes, to be sure, so don't get too excited, but they do represent movement in the right direction.
    There are plenty of things you can do without an EAD.
    First, as you may know, there are now long delays applying for and renewing the Employment Authorization Document ("EAD") - the work permit. As the law now stands, you must wait 150 days after filing the asylum application before you can apply for an EAD. During this period, it is often impossible to get a driver's license or a job, or to attend school, so the sooner the EAD arrives, the better.

    We used to see clients get the EAD in a month or two after filing, but recently, it is more like four months. Combined with the 150-day waiting period, this means that asylum applicants are waiting about nine months from the time they file for asylum until the time they receive their EAD. That's a long time to be without the ability to get a driver's license or a job, and it is one of the hardest parts of the application process.

    After the EAD is received, it must be renewed every year. The earliest a renewal can be submitted is 120 days before the current EAD expires. But the renewals also take about four months, so even if you remember to file the renewal at the earliest possible date, you may end up with a gap between the old work permit and the new. This could cause you to lose your driver's license or your job, and it is quite stressful for many people.


    Fortunately, there is some relief in sight. Under new proposed rules, USCIS would automatically extend the EAD at the time the application for renewal is filed. In other words, when you submit the form I-765 to renew your EAD, you will receive a receipt after a few weeks, and this receipt will automatically extend the validity of your existing EAD. This rule also applies to EAD applications for refugees and asylees (people granted asylum), and a few others.


    The rule has not gone into effect yet, and I am not 100% sure it is a done deal (though I do not see why they would change their mind). Perhaps if you are an asylum seeker who would like to see this rule implemented, you can tell USCIS about the hardship you've experienced due to EAD delays. Anyone is allowed to comment on the new rule by emailing USCISFRComment@dhs.gov. If you email them your story, you need to include the reference number of the rule in the subject line of your email, as follows: "DHS Docket No. USCIS-2015-0008".


    Perhaps coincidentally, I made this exact proposal for EADs a few months back. I presume that USCIS listened to me and they will be sending me a fruit basket to thank me for the good idea. Maybe they missed the other part of my proposal, where I suggested that EADs should remain valid for two years instead of one, but the automatic extension is a good start, and it will be a welcome relief for thousands of asylum seekers.


    The second bit of good news is more minor, but it is still a positive development. It used to be that when submitting the asylum application (form I-589) and supporting documents, we were required to submit the original and two copies. The new rule is that we submit the original and one copy. OK, perhaps this is only something a true asylum geek can get excited about (and maybe "excited" is too strong a word), but it does save some money and some trees, so that is all good.


    For me, these changes (particularly the change related to EADs) are a sign that USCIS recognizes the new reality created by the backlog: People are going to wait for a long time, and this is a hardship that needs to be addressed. If USCIS is willing to help out with EADs, I would hope that even more changes are coming. As I discussed previously, a few low-cost improvements might include prioritizing people separated from family members, making the Advance Parole process easier, and making the asylum application and waiting process more transparent. But that is a discussion for another day. For now, we can be happy that the burden on asylum seekers will be made a little lighter.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. Climate Change and the End of Refugee Resettlement

    Some observers believe that one of the root causes for the war in Syria is climate change. Starting in the first decade of the current century, drought and warmer temperatures in Syria pushed about 1.5 million people to move from their farms into cities. This more volatile atmosphere helped lead to war.
    Aquapalypse Now: Rising sea levels may create millions of new refugees
    So one effect of climate change may be to increase competition for scarce resources. Increased competition = more wars = more refugees.

    Another source of climate refugees is rising sea levels. As the water rises, certain areas and certain countries might become uninhabitable. People will have to be relocated. Many will be able to move within their own countries, but others will be forced to leave their homelands.


    The potential for mass movements of people across national borders is very real, and some experts predict that the new flow of climate refugees will dwarf anything we’ve seen thus far. That’s a scary thought, and for those of us involved in refugee resettlement, it represents an existential challenge: If tens or hundreds of millions of people are on the move, how do we accommodate them?


    And what about the current international legal regime? By definition, a refugee is a person who cannot return to his country owing to persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or particular social group. Many people fleeing Syria can meet this definition (some of our cases, for example, are shoe-horned in by presenting the claim as one based on imputed political opinion—even if they are not politically active, the Syrian government believes they are political opponents and that is enough for a grant). However, people who flee because their homes are flooded or because their crops have failed are not “refugees” as that term has been defined in international and U.S. domestic law. They are not being “persecuted” by anyone, except perhaps Mother Nature, but I don’t think that counts. So what do we do with them?


    As we’ve seen with the exodus from the Middle East to Europe and, on a smaller scale, from Central America to the U.S., the mass movement of people creates many challenges—social, economic, political, and moral. There is also great resistance by many segments of the community to accepting large numbers of foreigners. If that is the case, what will become of the new climate refugees? Will they be confined to UN-supported camps in the countries of first arrival? Will they remain in such places indefinitely? What is the end game for people who can never return home? How will the world order be affected by millions of stateless refugees, who live without hope and who may become a destabilizing influence on the host countries?


    Of course, I have no answers to any of these questions. Given the state of the problem today (over 59 million forcibly displaced persons worldwide, including about 19 million refugees) and the number of people who are annually resettled (about 626,000 were recognized as refugees or received some form of protection), I am not optimistic that we will accommodate millions more refugees in some dystopian (but probably not distant) future. One thing is true, if we see much larger numbers refugees in the world, we will have to deal with them in some way.


    One solution is to close our doors and try to keep the problem as far away from home as possible. This is essentially the path favored by several main-steam restrictionists groups. Indeed, the Center for Immigration Studies (“CIS”) and the Federation for American Immigration Reform (“FAIR”) both originated from concerns about immigration and the environment. The leading founder of these groups, John Tanton, viewed the mass movement of people as a threat to the environment, and favored restricting immigration as a way to protect the environment. It also happens that he was a bit of a white supremacist, but I suppose that is not particularly relevant to the environmental argument.


    As you might guess, I am not a fan of the environmental argument (or the white supremacist argument, for that matter). People who move from poor countries to rich ones probably use more resources in their new homes than if they'd stayed put, but they also have a better quality of life and they generally enrich the societies they move into (in 2014, for example, immigrants made up 12.9% of the U.S. population, but started 28.5% of new businesses). I am not sure how to balance this with the environmental impact, but when you add in the fact that many people are fleeing persecution or environmental disaster, the balance for me tips in favor of protecting people by allowing more migration.


    That said, I’m also not convinced that the U.S. and Western Europe can or should absorb millions of new refugees. There is a limit to how many people we can resettle and still maintain our social cohesion. I am not sure what that limit is, though it seems clear that we can do more than we are doing now. But the West cannot do it alone--if we see mass migrations due to climate change, the task of assisting and resettling people will need to be distributed across the globe.


    As a father and an uncle (and a person who is generally rooting for the human race), I hope that the world's leaders will make genuine efforts to curb global warming. As someone concerned about refugees and migration, I hope that we will respond to climate refugees with compassion. Climate change is a great challenge to mankind. I hope that we can meet that challenge and retain our humanity.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. Asylum Seekers Gone Wild

    Police officials in Cologne, German have received over 500 criminal complaints about attacks that occurred this past New Year's Eve. Forty percent of the attacks involved a sexual offense, and a large majority of the victims were women. Most of the culprits "were said to have been of a North African or Middle Eastern appearance," and so far, 22 of the 32 identified suspects are asylum seekers. Similar assaults were reported in other European countries.
    Perhaps in this case, the solution is worse than the problem.
    Not surprisingly, those who oppose refugee resettlement have seized on the attacks to denounce Germany's generous asylum policy. There were also several xenophobic assaults on refugees, supposedly in retaliation for the New Year's Eve incidents.


    The whole situation seems a bit strange to me: What exactly did these asylum seekers (and others) do? Why did this happen now? Have there been previous attacks that we have not heard about? What explains this behavior?


    First, based on the reports I have seen, I am really not sure what happened. Was this Spring-Break type debauchery exaggerated by anti-refugee hysteria, or something much worse (there is at least one report of Syrian nationals raping two girls at a New Year's Eve party, but the suspects are not asylum seekers and the incident seems unconnected to the other attacks)?


    I must admit that I am of two minds about this question. On the one hand, if scores of young women are reporting sexual assaults, that is deadly serious and must be addressed forcefully. On the other hand, I am wary of the old trope where the swarthy foreigner violates the innocent white female. This same story has been used many times to justify violence against "the other." For example, last year a young man entered an African-American church in South Carolina and murdered nine people, yelling at them: "You rape our women... You have to go!" Jews have long dealt with this issue in Europe, where for many centuries, we were "the other" (until Hitler eliminated that problem). In those days (and unfortunately still today in some places), Jews were accused of killing Christian babies in order to use their blood for ritual purposes. These "blood libels" were notorious lies, but they were used as an excuse to harm Jews. There's a tragic/comic joke about the blood libels that I've always appreciated:

    In a small village in the Ukraine, a terrifying rumor was spreading: A Christian girl had been found murdered. Realizing the dire consequences of such an event, and fearing a pogrom [a murderous anti-Jewish riot], the Jewish community gathered in the synagogue to plan whatever defensive actions were possible under the circumstances. Just as the emergency meeting was being called to order, in ran the president of the synagogue, out of breath and all excited. "Brothers!" he cried, "I have wonderful news! The murdered girl is Jewish!"

    You get the point. Obviously, this does not mean that the attacks in Cologne did not happen the way they have been portrayed, but it does urge us to be cautious in drawing conclusions, especially since there is so little publicly-available detail about those attacks.


    Assuming that the initial reports are correct and the attackers are asylum seekers, what is going on here? Maybe one explanation is that the asylum seekers in question are young men from sexually repressive countries who have been living in instability for many months. Now that they are in safe, open societies, where men and women mix freely, they cannot handle the adjustment. Not to let them off the hook—if they are guilty of assault or other crimes, they should be punished—but when refugees behave badly, there are often underlying pathologies that need to be examined. Maybe it is too late for these particular refugees (who might be deported), but at least this highlights an issue that can be addressed for other asylum seekers with similar backgrounds.


    Another explanation--the one favored by opponents of refugee resettlement--is that asylum seekers are a danger to the receiving communities, and that their values are incompatible with Western society. The New Year's Eve attacks, under this theory, are just one iteration of the problem. I think this view is incorrect. Refugees are not perfect, but the evidence suggests that they are no more likely to commit crimes than anyone else.


    But of course, many refugees are damaged people who have suffered trauma. They come from societies that are much more repressive and conservative than those in the West. While these factors may help explain criminal behavior among refugees, in my opinion, they do not in any way excuse it. Nevertheless, we need to keep this in mind when considering refugee resettlement. We need to help refugees deal with their trauma. We also need to help them understand and integrate into their new communities. This is easier said than done, especially in a situation like Germany's, where tens of thousands of people are arriving each month.


    In the U.S., our refugee numbers are much lower, and we are more able to help people adjust to their new lives. As a result, the overall crime rate for non-citizens seems to be the same as, or lower than that for native-born Americans. Vetting refugees and helping them integrate is the best way to protect ourselves, while at the same time meeting our humanitarian obligations and ideals.


    The doors to Europe appear to be closing, and the New Year's Eve attacks will only make things more difficult for all refugees. My hope is that we in the West will learn from this experience. Receiving countries should step up their efforts to recognize and pro-actively address the psycho-social needs of refugees, so that they will better acculturate to their new homes. This, to me, is the best way forward for everyone.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. You Can Go Home Again (Sort of): Visiting Your Home Country After a Grant of Asylum

    “If I am granted asylum, can I return to my home country?" I hear this question a lot.

    The skeptic would argue that no legitimate asylum seeker should ever return home. Indeed, they might argue, asylum is reserved for people who cannot return due to the danger of persecution, and anyone willing to go back did not need asylum in the first place. I think this is wrong.
    Your mother's bunt cake is probably not a compelling reason to return home (tempting though it may be).
    Many of my clients face long-term threats in their countries. For instance, I have clients from Afghanistan who have been threatened by the Taliban. These clients could return briefly to Afghanistan and remain relatively safe. However, to live there for any length of time would be extremely dangerous. Even where the threat comes from the government itself, clients can sometimes safely visit home for short periods of time. I’ve had Ethiopian clients who were wanted by their government, but who were able to return for a few weeks before the government realized that they were in the country. Ethiopia—like many developing countries—is not as adept at tracking people as the United States, and so it is possible to keep a low profile and avoid trouble, at least for a time.

    And of course, there are valid reasons to return home. Most of my clients have left family members behind. Others have businesses or properties. Still others are political activists who wish to return home to promote democracy and human rights. There are all sorts of reasons people want to go to their home countries—when balanced against the danger, some reasons are better than others (and some people are more willing than others to take risks).

    But what are the legal implications of a return trip for people with asylum? And does the calculus change if the person has a green card or is a U.S. citizen?

    For an asylee (a person granted asylum), the U.S. government can terminate asylum status if it determines that the person has "voluntarily availed himself or herself of the protection of the country of nationality or last habitual residence by returning to such country." This means that asylum can be terminated if the person placed herself under the protection of her home government by returning to her country (or even by using the passport from her home country to travel to a third country). USCIS can also terminate asylum status if it determines that the person is no longer a refugee (for example, if country conditions have changed and it is now safe to return home) or if it determines that asylum was obtained fraudulently (there are other reasons for terminating asylum, as well). A return trip to the home country could trigger one (or more) of these bases for termination.


    Even with a green card, USCIS can terminate asylum for the reasons listed above.

    If you don't run into trouble when you return to the U.S. from your trip, you could have problems at the time you file for your citizenship. When you complete the naturalization form (the N-400), you need to list all the countries you visited, and so the government will know whether you went home (and if you omit your travels from the form, you run the risk that the government will know about them from its own sources).

    For U.S. citizens who originally obtained their status based on asylum, the risk of a return trip is much less—but it is not zero. If the return trip causes the U.S. government to believe that asylum was obtained fraudulently, it could institute de-naturalization proceedings. I have heard of the U.S. government de-naturalizing citizens based on fraud, so it can happen, but all the case I know about involved aggravating factors, like criminal convictions or human rights abuses. Nevertheless, if USCIS knows about a fraud, it certainly could take action.

    So how do you protect yourself if you have to travel back to your home country?

    First, it is worthwhile to consult an attorney before you go. Don't go unless there is a very important reason for the trip. Also, keep the trip as short as possible. The less time you are in your country, the better. In addition, you should collect and save evidence about the return trip. If you went to visit a sick relative, get a letter from the doctor. If you returned home for only a short time, keep evidence about the length of your trip—passport stamps and plane tickets, for example. If you hid in your house and never went out, get some letters from family members who can attest to this. In other words, try to obtain evidence that you did not re-avail yourself of the protection of your home government and that you had a compelling reason to return home. That way, if USCIS ever asks for such evidence, you will be ready.

    The safest course of action is to never return home after a grant of asylum. However, in life, this is not always possible. If you do have to go back, you should consult a lawyer and take steps to minimize the likelihood that your trip will impact your immigration status in the U.S.

    Originally posted on the Asylumist: www.Asylumist.com.
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