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Jason Dzubow on Political Asylum


  1. Responding to the Center for Immigration Studies on Asylum

    The Center for Immigration Studies ("CIS") is a restrictionist immigration group with which I rarely agree (though they did recently call me a babe, which I certainly appreciate). In a new report, Asylum in the United States: How a finely tuned system of checks and balances has been effectively dismantled, CIS Fellow Dan Cadman argues that it has become easier to obtain asylum in the U.S., and as a result, more aliens--including dangerous aliens and aliens with false asylum claims--are coming to the United States and using the asylum system to gain entry into our country.

    If I were a president, CIS thinks I would be Babe-raham Lincoln.

    The CIS report makes a number of findings and recommendations, and if you are interested in this subject, it's worth a read (and if you are not interested in this subject, why the hell are you reading my blog?). Today, I want to talk about the report's main recommendations. We'll go through them one by one:

    (1) Congress must take steps to legislatively curb the propensity of courts to grant protections to aliens who are members of, have participated in, or have materially supported heinous criminal organizations or insurgencies... if those organizations systematically victimize others. This can be done by amending current language that limits the persecutor bar only to those who persecute under the five designated grounds, or by adding supplementary language to establish victimization of others with the purpose of furthering unlawful objectives as a bar to asylum or refuge.

    Who can argue with blocking persecutors and criminals from entering the United States? (Anyway, we have enough of our own already--I'm talking to you Dick Cheney). And CIS is correct that the persecutor bar only blocks people who persecuted others based on one of the five protected grounds (race, religion, nationality, particular social group or political opinion). This is almost as bizarre as granting asylum only to people who face persecution based on one of the five protected grounds.

    Overall, I don't really have a problem with this recommendation, except for the fact that it is totally unnecessary. The persecutor bar is not the only bar to asylum. Anyone who committed (or who the U.S. has reason to believe committed) a serious non-political crime is barred. Ditto for anyone where there are reasonable grounds to believe that the person is a danger to the security of the United States. These are mandatory bars for asylum and withholding of removal. So while there is nothing wrong with CIS's proposal, it's hard to imagine how it would actually change anything--all the people it seeks to block are already barred under other provisions of the statute.

    (2) Congress must roll back the recently-issued “Notice of Determination” promulgated by the administration with relation to terrorism and material support waivers.

    I've already discussed this issue pretty extensively here. In short, the only people who benefit from this change are those who provided support to terrorists where that support was coerced or unknowing. In other words, people who are innocent, and who, in many cases, are actually victims of those terrorists.

    (3) DHS (and, failing its action, Congress) must immediately institute a mandatory program of routine audits of a percentage of both credible fear findings, and formal asylum grants — perhaps an across-the-board 10 percent of all cases — as a method of detecting fraud and ensuring appropriate findings of credibility, and approval of asylum cases.

    This is an intriguing idea about how to stop fraud, but I don't think it would be particularly effective. I've always felt that the most cost-effective way to fight fraud is to go after the attorneys and notarios who commit fraud. Randomly auditing cases probably won't deter fraudulent applicants--they already face scrutiny from decision-makers, so what's one more level of review going to do?

    Perhaps one way to refine CIS's idea would be to select certain applicants for a more extensive interview or court process (rather than a separate audit). This might involve consular investigations or contacting overseas witnesses, more extensive questioning of the applicant, verifying the applicant's employment and education, etc. Applicants could be selected randomly or--better yet--selected based on an initial evaluation of the likelihood of fraud. While I still think it makes more sense to attack the source of the problem (the attorneys and notarios who facilitate fraud), subjecting suspicious (or random) cases to increased scrutiny might deter some people from making false claims.

    (4) The prosecution of asylum (or refugee) fraud and misrepresentations [should be made] a priority.

    Again, I think it would be more cost-effective to prosecute the lawyers and notarios who create fraudulent cases, but I have no problem with prosecuting asylum applicants who commit fraud. The problem is, such cases are difficult to prosecute given the high burden of proof (beyond a reasonable doubt) and the difficulty of obtaining evidence against the alien who faked his case. Such evidence is especially difficult (and expensive) to obtain when it comes from overseas.

    (5) Congress should amend the INA to provide that refugees and asylees will only be entitled to apply for conditional residence after a year in status, and not eligible to apply for adjustment to full lawful permanent resident status until after three years.... Although the three years of conditional residence does not eliminate fraud, it acts as a levee against an overwhelming volume of fraud while at the same time permitting government officials additional opportunities to further examine the bona fides of cases before immediately granting resident alien status.

    I guess I really don't see the point of this suggestion. As things now stand, an alien who gets asylum can apply for a green card after one year. At that time, USCIS often re-considers the alien's asylum case. For example, many Ethiopians who received asylum based on membership in a certain political opposition party have had their green cards held up (sometimes for years) due to the party affiliation (and the party's possible relationship to an armed guerrilla group). Sometimes their asylum cases are reopened. Once an asylee gets her residency, she can apply for citizenship after four more years. At that time, USCIS often examines the bona fides of the asylum application again. Indeed, even after an alien obtains citizenship, a fraudulent application can haunt him. I recently met an Afghan man whose citizenship was revoked due to fraud. He is currently in removal proceedings. The point is, USCIS has plenty of opportunities to re-examine an asylum claim. I don't see how one more opportunity will make much difference.

    (6) Each application for adjustment of status filed by an asylee or refugee should, prior to adjudication, include careful consideration of whether there are changed conditions that merit denial of adjustment and termination of asylee or refugee status.

    This seems pretty similar to # 5, above. Perhaps it also refers to changed country conditions that now make it safe for the alien to return home. I suppose USCIS could use any of the opportunities discussed above (application for green card or citizenship) to re-evaluate country conditions. But country conditions rarely change too much, and so I doubt this would result in many asylees being sent home.

    (7) Congress should amend the INA to provide that return to the ostensible country of persecution, however briefly, by a refugee or asylee at any time prior to adjustment to full lawful permanent residence shall be deemed prima facie evidence that the individual is not entitled to such status, and require him to be placed into removal proceedings.

    This idea was much discussed after the Boston Marathon bombing. The alleged bombers were derivative asylees, and they visited the home country prior to the bombing. In fact, as the law now stands, asylees who return home can lose their status. Indeed, even after an asylee becomes a lawful permanent resident, she can lose her status if she returns home (I wrote about this here). Return to the home country does not automatically cause an alien to lose status, as there are sometimes legitimate reasons for going back, but anyone who returns as an asylee or an LPR risks being placed into removal proceedings. Because this law already exists, CIS's suggestion here seems redundant.

    So there you have it. For completeness sake, I note that I did not discuss the report's recommendation to reject an asylum reform bill that is pending in the Senate. It seems that bill ain't going anywhere, and so there is not much point in talking about it, especially since I've already rambled on long enough. Adieu.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, cis Add / Edit Tags
  2. Raoul Wallenberg Lives! Maybe.

    Raoul Wallenberg was a Swedish diplomat assigned to his country's mission in Nazi-occupied Hungary. He arrived at his station in 1944, when tens of thousands of Jews were being deported to death camps.

    Sometimes, to do the right thing, you have to break the rules. And follow the Raouls.

    Using his cover as a diplomat, Mr. Wallenberg saved thousands of Jews from deportation. He gave them Swedish identity documents (of questionable legality), which protected them from deportation. He also rented various properties that became part of the Swedish mission, and which were thus protected by diplomatic immunity. The buildings ultimately housed (and protected) almost 10,000 people. Mr. Wallenberg used all the means at his disposal--legal and illegal--to save lives. All told, he is credited with saving over 100,000 men, women, and children.

    I was reminded of Raoul Wallenberg when I heard the story of how my newest client came to the United States.

    The client is a young man from Syria. A pro-government militia arrested him and his friends. They were accused of involvement in anti-regime activities and taken to prison. My client was lucky enough to recognize one of the guards, who intervened and had him released. My client's friends were not so lucky. They were ultimately released, but not before suffering severe torture.

    My client made his way to another country and applied for a U.S. visitor visa. As my client related the story, it was clear that the consular officer thought the client might seek asylum in the United States, and he questioned the client about whether he faced any threats in Syria. Although he obviously had suspicions, the officer issued the visa, and now the client is seeking asylum.

    Consular officers are supposed to deny visitor visas to applicants that they think have an immigration intent (an intent to seek asylum is considered an immigration intent). My suspicion here is that the consular officer correctly surmised that the client had immigration intent, but he issued the visa anyway. Was this, perhaps, a Wallenberg-esque move? Did the officer issue the visa precisely because he knew the endangered client could (and would likely) seek asylum in the U.S. and thus escape the danger in Syria?

    Obviously, I have no idea what was in the consular officer's mind, but it is interesting to consider his situation. When a Syrian or an Iraqi or an Afghan applies for a visitor visa, there is a decent chance that the visa applicant will travel to the U.S. and seek asylum. The consular officer's job is to prevent that from happening; to anticipate who is an immigration risk and to deny a visa to that person. But what if denying the visa might result in the person's death?

    It is easy to say that the consular officer should just do his job and deny the visa, but at the end of the day, the officer has to live with himself and his decision. For me at least, it would be difficult to meet a person who is likely fleeing for his life, and to then deny him a path to safety. Also, if it were me, I would feel that I could accomplish something positive and life-affirming by issuing the visa and helping the person come to the United States.

    But of course, the visa system is designed to do more than just block intending immigrants from gaining entry into the U.S. It is also designed to block terrorists and criminals. This is not an issue that Raoul Wallenberg had to deal with. In Mr. Wallenberg's case, he was not giving out valid travel documents. He was just giving out passes that the German and Hungarian authorities generally respected. This prevented the Nazis from murdering the people who held the passes, but no one was traveling to Sweden (or anywhere else) on Mr. Wallenberg's passes. There was no danger that Nazi agents would use the passes to infiltrate other countries or cause other harm.

    In the case of a (hypothetically) modern-day Raoul Wallenberg who gives out visas to people fleeing persecution, the danger of helping a terrorist or criminal would have to be balanced with the desire to save lives. I don't envy the consular officers who--whether they like it or not--have to make life or death decisions where their desire to help must be tempered by their duty to protect the United States and follow the law.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. Why Has the Asylum Office Skipped My Case? Part 2: Solutions

    Last time, I discussed the asylum case backlog from 2013: Why it happened, what (little) can be done to help, and DHS's justification for processing new cases before old cases. Today, I want to make some suggestions about how DHS might better handle this situation.

    DHS has created a new, less humorous version of the old NPR gameshow.

    First and foremost, DHS should provide better information about what is happening. While I imagine that DHS does not always know what is happening (after all, the backlog is unprecedented), it could be providing better information to the backlogged applicants. Some info that would be helpful: (1) An estimate of when the backlogged cases will be heard. Maybe DHS has no idea, but at least tell us something. Apparently, many new officers and support staff have been hired. Will some of these people be dedicated to backlogged cases (I've heard that at the San Francisco office one or two officers will be assigned to backlogged cases). Is there any sort of plan to deal with the backlog? Leaving applicants completely in the dark is the worst possible way to handle the situation; (2) If a particular Asylum Office has an "expedite list," it would be helpful to know the applicant's place in line and how many people are on the list. Is she the third person or the 200th person? This would at least give some idea of the wait time, especially if DHS updated each person's place in line as they move forward; and (3) It would be very helpful if the Asylum Offices explained why the backlog exists, what they are doing about it (hiring new officers), and what the applicants can do (apply for work permits, criteria to have a case expedited). While people like me can try to tell applicants what we know (and hopefully our information is more right than wrong), it is far better to hear it from the source. Each Asylum Offices has its own website, so it should be easy enough to publish this information.

    Another thing the Asylum Offices could do to ease the pain of the backlog is to give priority to backlogged cases based on family reunification. As I noted last time, one justification for the backlog is that applicants can get their work permits while their cases are in limbo. Of course, the work permit is helpful (even crucial) for many applicants, but for people separated from spouses and children, reunification is the number one issue. This is especially true where the family members are in unsafe situations. I know that in a large bureaucracy, nothing is as simple as it seems, but why can't DHS prioritize expedite requests where the applicant has a spouse or child overseas?

    A third possibility is to dedicate one or more Asylum Officers in each office to work on backlogged cases. As I mentioned, San Francisco will assign one or two Officers to deal with the backlog. What about the other offices? At least if we could see some progress--even a little--with the old cases, it would give hope to the people who are waiting.

    Finally, once a backlogged case is decided, DHS should give priority to any I-730 (following to join) petition filed by a granted applicant. Family separation is a terrible hardship. At least DHS (and the Embassies) can make up for some of the delay already suffered by moving I-730s for these cases to the front of the line. These applicants and their families have already waited long enough.

    In a perfect world, asylum cases would be processed in the order received. However, I understand DHS's concerns and the reasons for adjudicating new cases before old cases. By providing more information to backlogged applicants and by giving priority to people separated from their families, DHS can ease the pain caused by delay without implicating the policy concerns that brought us the backlog in the first place.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. Why Has the Asylum Office Skipped My Case?

    If you are an asylum seeker who filed an affirmative asylum case between about January 2013 and October 2013, you probably have not yet been interviewed, and your case has--seemingly--disappeared into a black hole. Meanwhile, other asylum seekers who filed after you are being interviewed and receiving decisions. So what gives?

    The storage room for backlogged asylum cases.

    As best as I can tell, in early 2013, the asylum offices nationwide essentially stopped hearing cases. The reason is because there was an influx of asylum seekers at the US/Mexico border. People who arrive without a visa at the border, and who request asylum, are detained. They then have a "credible fear interview" to determine whether they might qualify for asylum. If they pass the interview, they are generally released and told to return later to present their asylum case to an Immigration Judge.

    Because of the large increase in the number of people arriving at the US/Mexico border (and being detained), the Department of Homeland Security shifted Asylum Officers from across the country to the border. DHS prioritized the border cases because those people were detained. Of course, detaining so many people is very expensive; it is also not so nice for the people who are detained. Assuming that no additional resources were available, I suppose it is difficult to argue with DHS's decision to give priority to the border cases.

    To deal with the increased demand, DHS also began hiring new Asylum Officers. The word on the street was that they planned to hire 90 to 100 new officers nationwide (which is quite significant) and that they would be trained and ready before the new year. Sure enough, we started to receive interview notices for our clients sometime in October (most of our clients interview at the Arlington, Virginia Asylum Office). Since October, our clients generally wait from one to three months from the time we submit the application to the date of the interview. That's the good news.

    But since they started hearing cases again, the Asylum Offices have been scheduling people on a last-in, first-out basis. In other words, cases filed after October 2013 are being heard, while cases filed between January 2013 and October 2013 are stuck in the "backlog." There are two issues I want to discuss about the backlogged cases: (1) Whether there is anything that can be done if your case is backlogged; and (2) Why isn't DHS doing the cases in the order received?

    First, there are a few things you can try if your case is backlogged. For one thing, if 150 days have passed since you filed your asylum application, you can file for a work permit.

    If you want to expedite your case, there is a procedure (at least in Arlington) to request an expedited interview. However, there are a number of problems with this procedure. The most serious problem is that it does not seem to work. When you request an expedited interview, your name is placed on a list. If another asylum applicant cancels her interview, you (theoretically) will be given her time slot. The problem is that not many people cancel their interviews, and many people are on the expedited list. Also, if you happen to get an expedited interview, you will have very little notice, and so there may be insufficient time to prepare.

    Another possibility to expedite a case is to contact the USCIS Ombudsman. This is the government office that tries to assist immigrants and asylum seekers with their cases, and I have used it successfully a few times (though not for asylum cases). While I have a very high opinion of this office, its ability to expedite cases seems quite limited. One example of where it might be effective is if you have requested an expedited date due to a serious health problem (of you or a family member). After you have made the expedite request with the Asylum Office, and if that office does not expedite the case, the Ombudsman might be able to assist. In short, while the Ombudsman might be helpful for certain situations, it will probably not be able to assist in most cases.

    I suppose you could also try contacting a Congressperson, holding a sit-in or going on a hunger strike. I doubt any of these methods will be effective, but it you have luck, please let me know.

    The second issue I want to discuss is the logic behind DHS's decision to hear new cases before backlogged cases. I have the impression (from talking to several people on the inside) that there was a heated debate within the government about how to deal with this issue. It seems there are several reasons why DHS decided to hear new cases before backlogged cases.

    The main reason for hearing new cases first seems to be that DHS fears an influx of fraudulent cases. The logic goes like this: If cases are heard in order, delays will ripple through the system, and the average processing time for a case will dramatically increase. Cases will take much longer, but applicants will continue to receive their employment document six months after filing. This will create an incentive for aliens to submit fraudulent applications, which will further clog the system. By hearing new cases first, processing times are faster (except for the people left behind), and the incentive to file a fraudulent case and obtain a work permit is reduced.

    Tied to this fear of more fraudulent cases is a fear of Congress. The House recently held hearings on asylum, and there is a general (and probably accurate) belief that the ultimate aim of these hearings is to restrict asylum. DHS believes that increased delays (and thus increased incentives for fraud) in the asylum system will make it easier for the Congress to pass more restrictive laws related to asylum. In other words, DHS does not want to play into the hands of the restrictionists by increasing processing times for asylum cases.

    Finally, there is a general belief at DHS that delays are not all that damaging to applicants stuck in the backlog because such people at least have their work permits. If you forget about the stress and uncertainty, it is true that single applicants without children can work and live in the U.S. while their cases are pending. But for people who are waiting to be reunited with family members--especially when those family members are in dangerous or precarious situations--the delays can be deadly.

    So that is the basic situation, at least as far as I can tell. Next time, I will discuss some possible solutions to the problem.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. Amendments to the Terrorism Bar--or--How Fox News Enables the Holocaust

    I've created a new invention. It's called the "No-Hypocrisy Time Machine." It enables us to travel back into the past to apply today's laws and policies to historical events so we can see what impact they would have. In the process, we might just uncover some inconsistent or--dare I say it--hypocritical thinking.

    Before we begin our journey, let's look at the laws and policies that we will be sending back in time.

    Barred from asylum: A Jewish boy provides "material support" to the Nazis.

    After the 9-11 attack, Congress passed the USA PATRIOT Act (2001) and the REAL ID Act (2005). Both laws strengthened and expanded terrorism bars contained in the Immigration and Nationality Act. The "terrorism bars" were designed to prevent terrorists and their supporters from obtaining immigration benefits in the United States. The problem was that these laws were over-broad. So even a person who was coerced into providing minimal support to a terrorist--for example, giving a glass of water to a guerrilla fighter on pain of death--might be barred from receiving asylum in the U.S.

    Indeed, even the Bush Administration recognized that the terrorism bars were over-broad, and in 2007, DHS established some exceptions for coercion.

    Fast forward to February 2014. The Obama Administration issued regulations exempting an alien from the terrorism bar where the alien provided limited material support--such as engaging in a commercial transaction,providing humanitarian assistance or acting under duress--to a terrorist organization. Importantly, the exception to the terrorism bar does not apply unless the alien has (1) passed all security background checks; (2) explained the circumstances that led to the provision of material support; (3) "has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;" (4) has not provided support that the alien knew or reasonably should have known could be used to engage in terrorist or violent activity, or to target non-combatants; (5) poses no danger to the United States; and (6) warrants an exemption under the totality of the circumstances. One DHS official offered some examples of how the change might help otherwise innocent refugees: a restaurant owner who served food to an opposition group; a farmer who paid a toll to such a group in order to cross a bridge or sell his food; or a Syrian refugee who paid an opposition group to get out of the country.

    Conservative commentators have characterized the exemptions differently. One wrote: "If you're only sort of a terrorist, you can come to the US." Fox News opined that the "Obama administration has unilaterally eased restrictions on asylum seekers with loose or incidental ties to terror and insurgent groups." I suppose this isn't much of a surprise since it is the business of Fox News and similar outlets to take the most mundane events, extrapolate them to the Nth degree, and then work themselves (and their viewers) into an outraged fury.

    But how does Fox News's position play out when we place it into our No-Hypocrisy Time Machine? Let's travel back in time to World War II and the Holocaust to see what happens when today's laws are applied to those dark times. Without the rule change, who might be barred from asylum in the United States--and thus deported into the hands of the Nazis?

    The Schindler's List Jews - These Jews--men, women, and children--would be barred from asylum for working in Oskar Schindler's factory, which made cookware for the German Army. Deport them all. And by the way, that goes double for Mr. Schindler himself, who owned the factory and thus directly support the Wehrmacht.

    Eli Wiesel
    - The Nobel Peace Prize winner worked for the Nazis in a slave labor camp. His labor would certainly constitute "material support." His request for asylum is denied.

    Tom Lantos
    - The California Congressman and human rights advocate spent time in a Nazi labor camp. Barred.

    Simon Wiesenthal
    - The famed Nazi hunter was in Poland during the German invasion. He bribed an official to avoid deportation, registered to do forced labor, and later worked repairing railways. Barred, barred, and barred.

    In fact, I'd guess that many--if not most--Jews (and others) who survived the Holocaust had to pay bribes, engage in forced labor or give other "material support" to the Nazis. So why does Fox News support policies that would bar these people from safety in the United States?

    Obviously Fox News does not hate Holocaust survivors or Jews. But they do seem to hate the President, and to oppose anything his Administration does, even when his policies make perfect sense. Just as it would have been wrong to deny asylum to Eli Wiesel, Tom Lantos, and the others, it is wrong to deny asylum to innocent people who "supported" terrorist because they were coerced, they were unknowing or they had no choice. Modifying the rules related to the terrorism bar was the right thing to do. The claims to the contrary are--at best--inconsistent with universally-held values like protecting victims of fascism and terrorism. At worst, those claims are hypocrisy, pure and simple.

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