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Presenting an asylum case to an Immigration Judge or an Asylum Officer can be tricky business. There are an infinite number of ways to tell the story: How much detail to include, what to keep out, how to deal with derogatory facts. Not surprisingly, sometimes lawyers and their clients have different ideas about how the case should look. So what happens when lawyers and clients disagree?
First, we should acknowledge that there are areas where the lawyer’s interest and the client’s interest are in harmony, and other areas where those interests diverge. For example, both the lawyer and the client want to win the case. They both would like to finish the case as quickly as possible. They both want a good relationship with the other.
There are also areas where the lawyer’s and the client’s interests differ. The lawyer often wants to do less work on the case, while the client wants the lawyer to do more work. The lawyer has to deal with many cases, but the client wants her case, and her phone calls and emails, to receive the highest priority. The lawyer has her own ideas about how the case should be presented; the client may have a different idea. For attorneys in private practice (like yours truly), the lawyer wants to charge more money; the client wants to pay less. A good (i.e., ethical) attorney generally puts his own interests behind those of his client, but only to an extent, and when discussing “lawyers vs. clients,” it is helpful to acknowledge that there are inherent tensions in the relationship.
Here, though, I am less interested in the tension related to workloads and fees, and more interested in conflicts that arise between the attorney and her client with regards to strategy—how to present the case. But that conflict does not exist in a vacuum. Rather, it must be viewed in the context of all the other tensions inherent in the relationship, and—to make matters worse—it exists in the stressful environment of an asylum case, which can have life-changing implications for the client and her family. All this, we must keep in mind.
So what to do when the lawyer and the client cannot agree?
It happens to me periodically that I have a client who has his or her own idea about how a case should be presented, and that idea conflicts with what I think best. It is perhaps one of the downsides of experience, but the more cases I do, the less patience I have for clients who question my judgment. The problem with this attitude, of course, is that I am sometimes wrong, and if my experience blinds me to that fact, I am clearly disserving my client. For this reason, I try to practice humility and always carefully consider the client’s viewpoint. As the old prayer goes: "Lord, give me patience, and give it to me right now!"
Sometimes, however, the client is simply wrong about something: A "friend" told the client to hide her trip to Iran from the U.S. government; a person who is still legally married but separated wants to claim that he is single on an immigration form; someone with a criminal conviction wants to explain to the Judge that "it wasn't my fault!" In cases like these, the lawyer needs explain the problem, and usually the client understands (the U.S. government probably already knows about the trip to Iran, so trying to hide it is a mistake; even though you are separated, you need to indicate "married" unless the marriage is terminated by death or divorce; the Judge wants to hear you take responsibility for the crime, apologize, and explain how you will not repeat the same mistake).
Other situations are more subtle: The client wants to add too much irrelevant information to her asylum affidavit, for example. In a situation like this, I explain my point of view (the fact-finder will become frustrated if they get bogged down in unimportant details and it will distract from the thrust of the case) and usually the client agrees. If not, as far as I am concerned, it's the client's case and ultimately it's his decision to make. My concern is that the client's decision is made knowingly (maybe this is why lawyers are called "counselors" and not "deciders").
In cases where the client and I cannot agree, and where I think the client's decision will negatively affect the outcome of the case, I write down my position and make the client sign it. It's rare that I have to do this, but I want to have a record of what happened in case the client decides to blame me for losing the case (the technical term for this is CYA - "cover your ***"). Also, if I make the client sign such a document, it helps underscore the seriousness of the client's decision, and hopefully dissuades him from harming his case.
My feeling is that it is better to avoid a conflict with the client before it begins. So what can be done to minimize conflicts related to case presentation?
The most obvious solution is communication, and this is primarily the lawyer’s responsibility. As lawyers, we need to be transparent about what we do. If we over-sell our services, and promise the client the moon and the stars, we really can’t complain when the client expects us to deliver. It's the same with case presentation. The client needs to understand the lawyer's role, and what the lawyer can and cannot do (we can't help a client lie, for example). I find it helpful to show potential clients examples of my work, so they have an idea how their case will look at the end of the process. I also outline how we will prepare the case, what we need from the client, what my assistants will do, and what I will do. I also try to give them an idea about what we don't know--primarily, how long the case will take, given the very long backlog. To paraphrase the old ad, a well educated client is our best customer.
For many--if not most--asylum seekers, the process is stressful and scary. They are separated from loved ones and living with great uncertainty. As lawyers, we absorb some of that stress. By communicating effectively with our clients, we can reduce their stress and our own, and we maximize the chances for a successful outcome in their case.
Originally posted on the Asylumist: www.Asylumist.com.
My intrepid associate, Ruth Dickey, has been analyzing data from our cases filed at the Arlington Asylum Office during the past few years. She reports her findings here:
In December 2014, USCIS announced that it would address the asylum backlog in a new way: “First in, first out.” Prior to this new policy, the Asylum Offices were trying to complete as many cases as possible within 60 days. Cases that could not be interviewed within 60 days fell into the backlog. Over time, the number of cases entering the backlog grew and grew. Nationally, as of May 2015, over 85,000 applications are stuck in the backlog.
When we learned about the new “first in, first out” policy, we were hopeful that our oldest cases would be interviewed one after another in quick succession. Unfortunately, that didn’t happen—at least not yet (hope springs eternal, even for asylum lawyers). Let’s take a closer look at what is going on at the Arlington Asylum Office, the office where most of our cases are pending.
During 2013 and 2014, we filed 136 cases that are analyzed here (some cases—where the applicant moved to a different jurisdiction, for example—were excluded from the analysis in order not to skew the data). As you can see from the chart below, a large percentage of our cases fell into the backlog during those years, particularly during the second and third quarters of 2013. The low interview numbers in mid-2013 are likely due to the summer “border surge,” when many Central Americans started arriving at our Southern border and requesting asylum. The surge continued into 2014 and continues up until today. Especially in the beginning, USCIS was not prepared for the surge, and so we suspect the low interview numbers during the second and third quarters of 2013 are due to the government’s inability to deal with the sudden increase in applications.
As you can see in the next chart, a higher percentage of our cases were interviewed in 2014 than in 2013, suggesting that the Asylum Office was handling the volume more effectively. Even so, a significant portion of our cases—almost 40%—fell into the backlog in 2014. Given that the government has already interviewed the majority of cases from the fourth quarter of 2013 and from 2014, we are hopeful that once the Asylum Office reaches those cases, it will move through that portion of the backlog more quickly (the Arlington Asylum Office is currently interviewing cases filed in August 2013—about half way through the third quarter).
Since the change to the “first in, first out” policy, things have been moving slowly in Arlington. Only 16 of our backlogged cases have been scheduled for interviews during the first six months of 2015. As a point of comparison, during the same period in 2014, we had exactly twice that many—32 cases—interviewed.
For those people in the backlog who have been scheduled for an interview in 2015 (since the implementation of the new policy), how long did they have to wait? From the date the application was received until the date of the interview, the median wait time was 678 days. The following chart shows the wait times (in days - on the vertical axis) for our clients who were interviewed in 2015. You can see that there is some variability in wait times:
The family that had to wait the longest—809 days—had been scheduled for an earlier interview, but was rescheduled because their file was apparently not in the Asylum Office (where it disappeared to, we don’t know). It took an additional four months to retrieve the file and get the interview. Hopefully, we won’t see this problem again. Another of the longer-delayed cases had been scheduled for an earlier interview, but was rescheduled by the Asylum Office without explanation. This happens periodically, and we even saw it on occasion in the good old days, prior to the backlog.
Once people are finally interviewed, how long does it take to get a decision? The Asylum Office generally tries to make decisions in two weeks. Of the 16 cases from 2015, eight have received decisions. Sixteen cases is a very small number, and so we can only draw limited conclusions from this data. However, the oldest case in the group of 16 has been languishing since January. And, unfortunately, this person is not alone. Many others who were interviewed in 2013 and 2014 are still waiting for their decisions.
So that is a look at what we know now. As we continue to analyze the data, we will post what we learn.
Originally posted on the Asylumist: www.Asylumist.com.
The Office of the Citizenship and Immigration Services Ombudsman recently released its 2015 annual report to Congress. The report discusses all aspects of USCIS operations, and provides some new information about the asylum backlog and the government's efforts to improve the situation.
To resolve the backlog, each Asylum Officer will have to complete 243 cases. Ugh.
You may already be familiar with the Ombudsman's office--they are the ones who provide individual case assistance to affirmative asylum seekers and other USCIS "customers" (as they are called). They are also tasked with improving the quality of USCIS services by making recommendations to improve the administration of immigration benefits. The annual report includes these recommendations.
In this posting, I want to discuss a few of the report's findings that relate to asylum. Also, I will discuss the steps USCIS is taking to address the asylum backlog, and some recommendations for future improvements.
First, some findings. The report summarizes where we are now:
A substantial backlog of affirmative asylum applications pending before USCIS has led to lengthy case processing times for tens of thousands of asylum seekers. Spikes in requests for reasonable and credible fear determinations, which have required the agency to redirect resources away from affirmative asylum adjudications, along with an uptick in new affirmative asylum filings, are largely responsible for the backlog and processing delays. Although USCIS has taken various measures to address these pending asylum cases, such as hiring additional staff, modifying scheduling priorities, and introducing new efficiencies into credible and reasonable fear adjudications, the backlog continues to mount.
All this, we already know, but here are some numbers: At the end of FY 2011 (September 30, 2011), there were 9,274 affirmative asylum cases pending before USCIS. By the end of December 2014, that figure reached 73,103—an increase of over 700 percent (by May 2015, the number had grown to over 85,000 cases).
Probably the main reason for the backlog is the large numbers of asylum seekers arriving at the Southern border from El Salvador, Guatemala, and Honduras. When someone arrives at the border and requests asylum, an Asylum Officer gives the applicant a reasonable fear interview or a credible fear interview (if the person "passes" the interview, she will generally be sent to Immigration Court, where a Judge will determine whether she qualifies for asylum). In FY 2011, there were a total of 14,627 such interviews. In FY 2014, there were 60,085 - a four-fold increase. The Ombudsman notes that, "Various factors have contributed to this rapid rise in credible and reasonable fear submissions, including widespread crime and violence in Central America, where a majority of the applicants originate." The report continues:
These substantial increases demand considerable USCIS personnel and resources. For example, many Asylum Offices now send officers to various detention facilities around the nation to conduct credible and reasonable fear interviews. Such assignments deplete resources previously dedicated to affirmative asylum applications.
Another reason for the backlog is that the rate of new affirmative asylum filings has grown. "In FY 2011, asylum seekers filed 35,067 affirmative asylum applications with USCIS." "In FY 2014, asylum seekers filed 56,912 affirmative asylum applications, a 62 percent increase."
In addition, between September 2013 and December 2014, the number of "Unaccompanied Alien Children" with cases before USCIS increased from 868 to 4,221. These cases receive priority over backlogged adult applicants.
So what has USCIS done to address the delay?
First, the Asylum Division has been hiring more Asylum Officers. In 2013, there were 203 officers; by January 2015, there were 350, and the Asylum Division has authorization to elevate its total number of Asylum Officer positions to 448. Unfortunately, Asylum Officers do not stay in their jobs very long. The average tenure is only 14 months. One reason for the low retention rate may be that the Asylum Officer position does not have great promotional potential. Salaries start in the low $50-thousands and max out at less than $100,000. By comparison, lawyers who work in other areas of the federal government can earn more than $150,000 per year (and salaries in the private sector can be much higher).
Second, starting in late December 2014, USCIS now interviews cases on a "first-in, first-out" basis, meaning that the oldest cases are interviewed first. There is concern that such a system will encourage people to file frivolous cases in order to get a work permit while their cases are pending, but so far, we really do not know if that is happening.
Third, in May 2015, USCIS announced that it would begin publishing estimated wait times for asylum interviews at the different Asylum Offices. Supposedly, they will provide an approximate timetable—roughly a two to three-month range—within which the interview will take place. We have been hearing about this idea for some time, and hopefully, USCIS will post this information soon.
Finally, "USCIS has implemented a range of policy and procedural changes in the credible and reasonable fear contexts that have had the effect of shortening case processing times." For example, more interviews are conducted telephonically, as opposed to in-person, which helps save the Asylum Officer's time. Of course, shortcuts potentially affect the quality of the decision-making, and USCIS is monitoring this. Personally, given that the large majority of applicants "pass" their credible and reasonable fear interviews, I think it would save time to eliminate the interviews altogether, and allow anyone to submit an asylum application and go directly to court.
The report also lists two ways to potentially accelerate the interview date: (1) interview expedite requests; and (2) interview "Short Lists:"
First, each Asylum Office accepts and evaluates requests for expedited interviews, granting or denying those requests based on humanitarian factors, such as documented medical exigencies, as well as the Asylum Office’s available resources. Depending on the Asylum Office, applicants may make these requests in-person or via email. Some Asylum Offices also maintain Short Lists, containing the names of backlogged applicants who have volunteered to make themselves available for interviews scheduled on short notice due to unforeseen interview cancellations or other developments. Backlogged applicants may wish to contact their local Asylum Office to inquire about the availability of such a list.
I discussed these ideas, and a few others, here.
Lastly, I want to briefly discuss the report's findings related to delays obtaining Employment Authorization Documents ("EADs"). The main point of interest here is that the delays are seasonal. For various reasons, EAD applications filed during the summer months take longer. This means--if possible--try to file for or renew your EAD outside the busy season. To me, there is an easy solution to this problem, at least as far as asylum seekers are concerned: USCIS should make the EAD valid for two years instead of one, or better yet, tie the EAD to the asylum application, so it is valid for the duration of the case. I have discussed problems and suggestions for improvement in the EAD process here.
Perhaps it provides some comfort to asylum seekers to know that the U.S. government is trying to reduce the backlog and move their cases along. If you are interested to learn more, take a look at the full report.
Originally posted on the Asylumist: www.Asylumist.com.
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.