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She got us. A recent article by anti-immigrant activist and daughter of immigrant parents, Michelle Malkin lays bare President Obama's nefarious scheme to enrich immigration lawyers while filing our country with criminals, Muslims, and "Typhoid Marias." Ms. Malkin states:
Immigration lawyers celebrate the recent influx of child asylum seekers at our Southern border.
[L]eft-wing immigration lawyers and ethnic activists operate a lucrative industry whose sole objective is to help illegal aliens and convicted criminal visa holders evade deportation for as long as possible. Groups such as the American Immigration Lawyers Association, the Immigrant Legal Resource Center, and the American Friends Service Committee make their livelihoods off administrative bottlenecks.
How does she know about this? It’s almost as if she were a fly on the wall at my country club where she overheard me talking with my friends at AILA, ILRC, and AFSC about all the money we've been making since thousands of wealthy Central American children started arriving at the Southern border. Perhaps my friends and I were all speaking a bit too freely after having consumed a few bottles of Vosne-Romanee Permier Cru (1983). We will have to be more guarded in the future.
Frankly, though, as the father of two future Andover academicians with a yacht that won’t pay for itself, I’d like to know who let out our little money-making secret? Ms. Malkin gives us a clue. She writes, “Insiders have told me again and again over the years: ‘It ain’t over ‘til the alien wins.’” Who are these colloquialism-spouting “insiders” that tattled on us? One source seems to be a former law clerk from the Fifth Circuit (hence, ain’t) who, Ms. Malkin tells us, believes that Ms. Malkin is “absolutely correct” in her analysis: “immigration lawyers use the current system of endless appeals to make illegals essentially undeportable.” This clerk was also amazed that “illegal aliens, unlike American citizens, get TWO appeals as of right - one to the BIA and then another to the Circuit Court of Appeals.” I am not sure whether Ms. Malkin or the unnamed clerk emphasized TWO to show how amazed she/he was, but the emphasis was in the original article. I am also not sure how Ms. Malkin (or the clerk) got from “TWO appeals” to “endless appeals” in the same paragraph. Probably I was too busy counting my endless money to follow the logic (I made $2.00 today). Finally, I wonder who these poor Americans are who receive only ONE paltry appeal. My guess is that they are not before an administrative court (immigrants appear before administrative courts—the Immigration Court and the Board of Immigration Appeals or BIA), which usually allow for an administrative or inter-agency appeal and an appeal to a federal court (TWO appeals! Even for U.S. citizens! Ain’t that sumpin’?).
Ah, but it only gets worse from there. Ms. Malkin even knows how we lawyers operate. She writes that the “legal tricks” for avoiding deportation include scams that would make Professor Harold Hill blush. Scams such as asylum (trouble!), cancellation of removal (Trouble!), and adjustment of status (TROUBLE! TROUBLE! TROUBLE!). Yes, we surely got trouble. I myself am a purveyor of that legal sleight of hand known as “asylum,” where we gather a type of snake oil known as evidence (which of late for my cases has included such gems as death certificates for close family members, medical reports about serious injuries, and letters from U.S. military commanders) and submit it to the Immigration Judge in the hope that our client won’t be deported to his death.
Ms. Malkin even knows about the “fraud-friendly U visa,” which provides a path to citizenship for “virtually anyone who applies.” All you need is to be the victim of a serious crime, the cooperation of law enforcement—who must submit signed documents on your behalf—and about three years of waiting. Then you too will gain residency based on a U visa. Easy peasey.
And then, of course, there are the “young illegal border surgers” who have been arriving along our Southern border like so many crazed teenage Beliebers. They too have a “plethora of litigation bites at the apple that will keep them in our country in perpetuity.” Lucky for them that they have such a plethora of options given that, historically, something like 97% of asylum claims from Central America and Mexico are denied. And lucky for us too—I can almost hear the coins clinking into my cup as these young Rockefellers pay my fellow attorneys and me for each delicious bite at that apple. Ka-ching!
Of course, none of this would be possibly without the complicity of the BIA, a bunch of "meddling activists" who Ms. Malkin tells us, "have the power to overturn deportation orders nationwide.” Never mind that less than 10% of Immigration Court cases are appealed and only about 11% of those are successful, or that—depending on the circuit court—between 5% and 30% of BIA decisions are overturned in federal court. It’s clear that the Mexican-loving hippies on the Board will stop at nothing to keep illegals in our country. And by the way, these endless appeals (ONE!) to the Board are earning big money for us lawyers. Why, my last BIA appeal alone paid for my oldest child’s college (in 15 years, assuming I can find a money market account that earns 88% per year; I'll let you know).
In the end, I have no regrets. I suppose I could have taken the more honorable, but less lucrative path and worked as a political pundit, serving my country by courageously standing up to powerless immigrants and refugee children. Instead, I have chosen to make the big money by representing those immigrants and refugees. Believe you me, I am laughing all the way to the bank...
Originally posted on the Asylumist: www.Asylumist.com.
The Jewish community around the world has recently been in mourning for the loss of three young Jewish men, kidnapped and murdered in the West Bank. Their bodies were found on June 30, more than two weeks after they were taken.
They are all our boys.
Israel blamed Hamas for the kidnapping and, since the three teens disappeared, has been engaged in a crackdown against the terrorist organization. For its part, Hamas did not claim credit for the crime, but praised the kidnapping. The event has sparked Hamas rocket fire from Gaza into Israel, retaliatory airstrikes, and the revenge killing of an Arab teen by Jewish extremists.
The discovery of the young men's bodies also led to mass mourning within the Jewish community in Israel, around the world, and here in Washington, DC. Last week, 1,200 mourners attended a memorial service in suburban DC for the slain teens. Most of the attendees were Jews, but representatives of several local Christian communities were also present. All expressed solidarity with the family members and deep sadness at the loss of "our boys."
Of course in times of tragedy, it is the nature of communities--even fractured ones like the American Jewish community--to come together to mourn and comfort one another. But this recent tragedy in my own community, and our response to it, has gotten me thinking about whether the way we mourn--and what events we choose to mourn--contributes to the problem of violence between communities.
One area of concern for me is the us/them mentality of the Jewish community's response (and obviously this is not unique to the Jewish community). The idea that there is an us and a them. Our expression of grief over the loss of "our boys" seems to me symptomatic of the problem. We grieve for "our boys," but not for "their boys." Maybe this is a trite point, but I can't help but think about some of the people I have represented; people who have faced senseless losses as horrible as those suffered by the Israeli teens' families.
For example, I am representing a Syrian couple whose newborn baby was asphyxiated by dust and poison gas during a battle. I also represented (successfully) an Iraqi mother who watched her son gunned down in front of her and in front of his own wife and young child. We recently attended an asylum interview for an Afghan man who saw dozens of his relatives and friends killed and maimed by a missile strike on a family wedding. There are no public memorials for these victims. No one even knows about their stories. Indeed, maybe because stories like these are so common in places like Syria, Iraq, and Afghanistan, no one pays much attention. But I have met all these people and heard their stories, so when I see the outpouring of grief for the three Israeli boys, it is difficult not to feel that the solitary suffering of my clients (and millions like them) is unfair and that failing to fully validate the humanity of such victims is unjust. Perhaps if we thought of people like my clients as "us" rather than "them," we would be more willing to take action to help them (and that goes for all the unaccompanied minors arriving at our Southern border--what if we thought of these children as "our boys and girls"? How would our approach to them differ?).
Maybe I am hoping for too much here. How can we acknowledge so many losses? Why shouldn't we honor and support "our own" before we deal with everyone else? I don't know, but it seems to me if we could do better about recognizing the humanity and the value of "the other," we would take a big step towards preventing future harm for everyone.
A second concern I have about my community's response to the deaths is more about what we didn't do. We mourned "our boys," but not the Palestinian boy who was killed in a barbaric revenge attack by Jewish extremists. Israel quickly arrested the culprits and Prime Minister Netanyahu and many others have condemned the killing. These are obviously important steps, but it is a bit different than mourning the loss of the young Palestinian. Mourning the young man's death is important not only because "our side" is responsible for his death and thus it reflects on us, as Jews, but also because we need to recognize the boy's value as a human being.
Again, maybe it is asking too much--especially in the heat of conflict--for Israelis and Palestinians to mourn each others' losses, but I believe that this is what we must do if we hope ever to end the violence. Indeed, family members of one of the Israeli boys and of the Palestinian boy have been in contact with each other, and some Palestinians and Israelis have been crossing the lines to offer condolences to each other. If people so close to these tragedies can see the humanity in each other, perhaps one day the rest of us will too.
Originally posted on the Asylumist: www.Asylumist.com.
For certain applications with USCIS, the applicant can pay an additional fee of $1,000.00 and receive "premium processing." For people seeking an H1B visa or a green card based on extraordinary ability, payment of the premium processing fee is the norm, and the result is that USCIS responds to the application (sometimes with an approval, other times with a request for additional evidence) within a few weeks. So should premium processing be available for people seeking asylum?
Waiting in line is a poor man's game.
There are certainly arguments against such a scheme: Humanitarian benefits should not be for sale, it is unfair to privilege wealthy applicants over poor applicants, asylum is somehow cheapened by making it more expensive. But given the current state of affairs in the asylum world, I think that USCIS should allow premium processing for asylum seekers who want it and can pay for it.
First, the current state of affairs: The asylum system is groaning under the weight of too many applications. Thousands of cases from 2013 are still lost in limbo, and--at least based on my observation of the local office here in Virginia--we seem to be on the verge of another slow down. People separated from family members have no recourse except to wait. And worse, they have no idea how long they will have to wait. The Asylum Offices have created "short lists" where (supposedly) you can put your name on a list, and if a slot opens up, you will be interviewed. So far, at least for my clients, this seems to work not at all. The bottom line is that we are facing very long delays and applicants and their family members are suffering severely.
So how would premium processing help?
Obviously, for those applicants who could pay the fee (whether $1,000.00 or some other amount), their cases would be given priority. This would benefit those applicants who pay the fee, but--if implemented correctly--it would also benefit people who do not pay the fee because the premium processing cases would be removed from the general queue, which would free up interview slots for everyone else.
Quantifying the effect of a premium processing fee is a bit tricky, however. For one thing, it is not easy to find asylum statistics from the government. A good guess is that between 3,500 and 4,000 people per month file affirmative asylum cases. That is approximately 40,000 people per year. If half those people paid a premium processing fee of $1,000.00, an additional $20 million would be pumped into the system. This would be a significant increase in funding. As best as I can tell, the budget for asylum and refugee operations for FY 2014 is about $236 million, so an additional $20 million for asylum operations alone would be a major increase (the asylum and refugee budget is paid for by USCIS application fees from non-asylum cases, so the cost to U.S. tax payers is minimal). With this additional money, the Asylum Offices could hire more officers, provide resources to expedite background checks, set up a system so applicants could track the progress of their cases, and even provide free donuts and coffee to attorneys waiting for their clients' interviews. In other words, the money could be used to improve the system for everyone, including those who do not pay the fee.
Of course, we don't know how many asylum applicants would (or could) pay a premium processing fee, but I suspect that many would pay. Remember that asylum applicants differ from refugees in that they have come to the United States on their own. Whether they came legally or illegally, it is likely that they paid for their journey here. Also, many asylum applicants pay attorneys or notarios to prepare their cases. My guess is that many such people would be happy to pay a fee if it meant that their cases would be adjudicated more quickly.
I must admit that I feel a bit uncomfortable about asking asylum applicants to pay the government to adjudicate their cases (which is maybe ironic, since I ask them to pay me). But given the difficulties caused by long delays (separation from family, stress, uncertainty), I feel that the benefits of a premium processing system would far outweigh any disadvantages.
Originally posted on the Asylumist: www.Asylumist.com.
A recent article in the Wall Street Journal (“WSJ”) posits that the number of gay and lesbian people receiving asylum in the United States based on their sexual orientation has surged in recent years and that most such people come from countries in Central America where homosexuality is not criminalized (as opposed to places like Ugandan, where loving the wrong person is a hanging offense). The article, by Joel Millman, concludes that LGBT asylum cases from Mexico and Central America are more likely to be granted than most other types of asylum cases from those countries.
More gay people than ever are fleeing persecution.
Heaven forbid that I should agree with the WSJ (Slate certainly didn’t in a piece that pretty clearly misreads the Journal article), but the anecdotal and statistical evidence supports the notion that more people are seeking asylum based on sexual orientation and that those claims are often more likely to succeed than claims by other people from the same countries. But of course, as a certified curmudgeon, I cannot completely agree with the Journal piece, and indeed, I have a few points to take issue with. Then I’d like to pose a question: Is it really easier--as the WSJ claims--for LGBT applicants to obtain asylum in the United States?
First, the issues. To reach his conclusion that more LGBT people are seeking asylum, Mr. Millman relies on two main sources—statistics from the U.S. government and information from Immigration Equality, probably the premier LGBT asylum organization in the country.
As to the statistics, the government does not keep data on the number of people who receive asylum based on sexual orientation. As a rough proxy, the WSJ looked at the percentage of cases granted based on "particular social group" or PSG, the protected category most often used in LGBT asylum cases. The Journal found that as a percentage of total cases, the number of PSG cases has increased over the last several years (from about 12% at the end of the G.W. Bush Administration to 15.7% today).
I am not convinced that this metric tells us a whole lot about the number of gay asylum cases, however. Many people seek asylum based on PSG--gays and lesbians, victims of domestic violence, people fleeing gang persecution, victims of female genital mutilation, to name the most obvious--and so an increase in the percentage of asylum seekers relying on PSG does not necessarily mean that the number of LGBT asylum seekers has gone up. Also, concurrent with our country’s more liberalized approach to LGBT asylum claims, we have expanded protection for other categories of people who fall under PSG. So while the modest increase in asylum seekers relying on PSG supports the notion that LGBT claims are up, I don’t think this data is incredibly significant.
In my opinion, the anecdotal evidence for an increase in the number of LGBT cases is more convincing. According to the WSJ: “Last year, just one New York-based advocacy group, Immigration Equality, helped put 279 LGBT foreigners into the asylum process, a 250% increase from 2009.” That pretty well comports with what I’ve been seeing in DC and what I’ve heard from other lawyers, and so I believe the number of LGBT claimants is up, but by how much, we don't really know (I have harped on this before, but this lack of reliable data again illustrates the need for better information about asylum seekers).
Another quibble with the article is the WSJ’s comparison of LGBT asylum seekers from Mexico and Central America, where homosexuality is not illegal and—in fact—where laws theoretically protect gay people, with other countries whose governments condemn homosexuality or make it illegal. The article notes that of the top 10 countries with the most PSG grants (where PSG is a proxy for LGBT), only three have laws against homosexuality. This all strikes me as basically meaningless. We receive many more asylum seekers from our own neighborhood, so there is no surprise that most PSG claims come from nearby countries. And while it is interesting that three distant countries (Kenya, Ethiopia, and Guinea) with anti-gay laws produce large numbers of PSG asylees, we have no way of knowing how many of these cases are LGBT; particularly since all three countries have high instances of female genital mutilation, which also falls into the PSG category.
The bottom line for me is that, while the increased number of PSG cases is consistent with an increase in LGBT claims, the statistics don't really tell us much. But based on the anecdotal evidence and my own experience, it seems clear that more people than before are seeking asylum based on sexual orientation. Whether this constitutes a "surge" in LGBT claims, as the WSJ concludes, is debatable given the lack of data.
Finally, do LGBT claimants have an easier time winning asylum than others?
As the WSJ points out, an LGBT case from Central America is certainly more likely to succeed than the average case from the region. According to the Journal, Immigration Equality's "success rate for closed cases [is] 98%, roughly quadruple the batting average of the typical asylum-seeker." (Though I would be curious to know how they define "success" when they came up with this figure). Of course, many cases from Central America are based on gang persecution, which does not easily fit within a protected category for purposes of asylum. Since LGBT asylum seekers fall within a protected category--PSG--it is not surprising that they have a higher success rate than average. I would imagine that other cases where there is an obvious protected ground--like political cases, for example--are also much more likely to succeed than the average case.
Also, as the Journal points out, for LGBT asylum seekers, the likelihood of success is particularly high because country conditions are particularly bad. In our office, we see a decent number of LGBT asylum applicants, and they often have been subject to severe physical and psychological violence. So based on my own experience, the information in the WSJ piece rings true.
In the end, we don't have the data to make a firm conclusion about how much "easier" it is for LGBT claimants to obtain asylum, but it seems likely that the success rate for such cases is higher than for many other types of cases. Given the threats and violence against gay people around the world, it seems to me that a high asylum grant rate is completely justified.
Originally posted on the Asylumist: www.Asylumist.com.
We've been hearing a lot lately about the dramatic increase of asylum seekers and unaccompanied minors at our Southern border. There is debate about what is causing the increase--violence and poverty in the home countries vs. lax enforcement and the relative ease of obtaining lawful status in the U.S.--and no one really knows for sure. Because we receive more migrants from the more violent Central American countries and less from the more peaceful countries, I think that dangerous country conditions are a significant "push" factor. This hypothesis is supported by a new UN report that found a 435% increase in the number of Guatemalans, Hondurans, and Salvadorans requesting asylum in other, more peaceful, Central American countries. The report also surveyed several hundred child arrivals and found that, for the majority, violence in the home country was a factor in their migration. On the other hand, because the uptick in arrivals in the U.S. is generally not correlated with an uptick in violence at home, I suspect that "pull" factors also play a significant role. The fact is, if you live in a violent, poor country, and you want to find a place where you can resettle, live safely, and build a life, the U.S. is probably your best bet (yes, Canada is nice too, but it's a bit far).
For some politicians, even considering thinking about possibly looking into immigration reform can be harmful.
Regardless of the reasons behind it, the surge of people arriving at our Southern border has created real problems for the asylum system and for all applicants, many of whom are facing long, seemingly indefinite, delays. The influx is also problematic because large numbers of young people are making the dangerous journey North to the United States. This journey puts them at risk of physical and sexual harm, it separates families, and it provides income to the criminal organizations that smuggle people to the U.S. (often the same organizations involved in the drug trade). Indeed, the criminal/smuggling organizations apparently contribute to the influx (and their own bottom line) by encouraging people to make the journey.
So what can be done about the situation? And--more specifically--what can be done that discourages primarily economic migrants, but that also protects legitimate refugees and preserves our asylum system for those who need it? Also, can anything be done to make the journey safer and to cut criminal/smuggling organizations out of the process?
The UN report provides some recommendations: International actors should pay more attention to the protection needs of child migrants, we should increase our capacity to deal with child arrivals and work together with other nations to address the needs of these children, and we should work to reduce or eliminate the factors leading to forced migration. While the report's findings are very valuable (this seems to be the first time any large scale study bothered to ask the migrants themselves why they are coming here), I don't find the recommendations particularly satisfying. It is always easy to say we need more attention and more resources to reduce a problem, but who will pay for this? And how do we build a public consensus to bring more immigrants here and pay for them? Also, to say that we should address root causes seems obvious, but how?
Perhaps a better solution would be to create Refugee Processing Centers in Mexico and Central America. Not only would this cut the smugglers out of the picture, deprive criminal/smuggling organizations of income, and greatly reduce the financial incentive for these organizations to encourage more migration, it would also curtail the need for young people to make the perilous journey North.
For this to work, we would have to end all refugee processing at the border. Anyone who arrives at the border (or who enters unlawfully and then seeks asylum) would be sent to a refugee processing center in, say, Mexico. In order to encourage people to go directly to the processing centers (instead of the border), people who go to the border first would be given a lower processing priority than people who arrive directly at the centers. A side benefit would be that legitimate refugees would no longer be arriving at the border; this would allow the Border Patrol to focus on illegal entrants.
There are obviously logistical issues to work out, for example: Where do we house people--including children--who are waiting? How do we share the burden with other countries in the region? Would other countries be willing to resettle some refugees (according to the UN report, they already are). Despite the obstacles, it seems to me that this would work better than the non-system that we currently have.
The estimated budget for resettling unaccompanied minors in 2015 is over $2 billion, and this does not even count the cost of dealing with adults who arrive without permission. If trends continue (which hopefully they won't), our current system will fall apart. We need creative solutions; solutions which--hopefully--will reflect our humanitarian obligations and ideals, protect children, put smugglers out of business, and keep our border secure. De-coupling refugee processing and border enforcement may be one way to accomplish these goals.
Originally posted on the Asylumist: www.Asylumist.com.