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"Bye, Mommy, I'll see you in high school."
I’ve written about the “backlog” a number of times. Essentially, as a result of large numbers of Central American youths arriving at our Southern border and seeking asylum, the system was overwhelmed and—though it didn’t exactly grind to a halt—there have been major delays for many applicants. The “surge,” as it is known, was not USCIS’s fault and, in fact, USCIS has worked hard to continue processing cases under very difficult conditions.
I’ve discussed before about some things USCIS could do to ease the burden on asylum applicants—prioritize applicants separated from family members, expedite following-to-join petitions once a case is approved, perhaps implementing “premium processing” for asylum applicants who can afford it—but lately I’ve noticed an unfortunate trend that USCIS needs to correct.
We’ve seen several of our clients’ applications for Advance Parole improperly handled or denied. Advance Parole is a document that allows an asylum applicant to leave the United States, travel to another country, and then return to the U.S. and continue her asylum application. When asylum applications generally took only a few months, Advance Parole was much less necessary. But now, when applications can take years, it is very important. In the era of the “backlog,” many asylum applicants face prolonged separation from spouses and children, not to mention parents, siblings, and friends. As you can imagine, these long separations are often the worst part of the whole process.
Advance Parole is a way to mitigate the difficulty of long separations. The applicant can obtain Advance Parole, travel to a third country to see her family members, and then return to the United States and continue her case. The application form itself (form I-131) asks whether the applicant plans to return to the country of feared persecution and—if the applicant returns to her country—it could result in a denial of asylum.
In recent weeks, we’ve been seeing two problems with USCIS decisions in Advance Parole cases. The first problem involves outright—and improper—denials of the I-131s. In these denials, USCIS claims that the I-131 must be denied because the applicant has not filed a concurrent form I-485 (application to adjust status to lawful permanent resident). In other words, because the asylum applicant has not filed for his green card, USCIS believes that he is not eligible for Advance Parole. This is simply incorrect: Asylum applicants are eligible for Advance Parole. See 8 C.F.R. 208.8. What is so frustrating about these denials is that we clearly indicated on the form I-131 that the person was an asylum seeker, and we included evidence of the pending asylum application; evidence that USCIS completely ignored. Not only do these denials prevent asylum applicants from seeing relatives (including relatives who are in very poor health), but they also waste money: The cost of an I-131 application is $360.00. To appeal the denial of an I-131 costs $630.00 (not counting any attorney’s fees) and takes many months, so it really is not worth the trouble and expense.
The second problem we’ve seen with Advance Parole applications is that USCIS has been requesting additional evidence about the purpose of the trip. So for example, where one client has a sick parent who he hopes to visit in a third country, it has not been enough to provide some basic evidence about the sickness (like a doctor's note or a photo in the hospital), USCIS has requested more evidence of the health problem. Why is such evidence needed? As applicant for asylum is eligible for Advance Parole. He can travel for any reason: To see a sick relative, to attend a wedding, to go to a professional conference. So why should USCIS need to see evidence that a relative is ill in order to issue the Advance Parole document? It is insulting and unnecessary; not to mention a waste of time. I suppose this type of request for additional evidence is better than an outright denial, but it is still improper.
What also been a source of frustration, is that we’ve filed three identical Advance Parole applications for a husband, a wife, and their child. We mailed the applications in the same envelope with the same evidence. So far, the husband’s was denied because there was no pending I-485, the wife was asked for additional evidence about her sick relative (so presumably USCIS believes she can travel despite the absence of a pending I-485), and the child’s has been transferred to a different office altogether and is still languishing there. They say that consistency is the Hobgoblin of small minds, but it would be nice if USCIS could get its act together on these Advance Parole applications. Real people are harmed because of the government’s confusion about how to process these cases. I don’t know if it is a training issue or something else, but USCIS should examine what is going on here.
As the backlogged cases drag on and on, foreign travel becomes more important for many applicants. The uncertainty surrounding the I-131 applications, and the inability to see family members, is only adding to the applicants' stress and frustration. Let's hope that USCIS can resolve the problem and give some basic relief to asylum applicants.
Originally posted on the Asylumist: www.Asylumist.com.
They say that those who do not learn from history are doomed to repeat it. In that spirit, I'd like to discuss some asylum cases that I've lost (or at least that were referred by the Asylum Office to the Immigration Court) and why the cases were not successful.
Remember: You can't spell "client" without "lie."
I am prompted to write about this topic by a recent, unpleasant experience at the Asylum Office. My client was an Iraqi man who claimed to have been kidnapped by a militia, which targeted him due to his religion. Unfortunately--and despite us directly asking him about his travels--the man failed to tell us that he had been to Jordan and applied for refugee status there through the UN. At the interview, the client again denied that he had ever been to Jordan, but then the Asylum Officer told him, "Service records indicate that you applied for refugee status in Jordan in 2011" (whenever an Asylum Officer begins a sentence with "Service records indicate...", you know you are in trouble). The client then admitted that he had been in Jordan for a year. At this point, it was obvious to me that things were only going to get worse from there, and so I recommended that the client end the interview immediately, which he did. That is the first time I ever had to end an interview in this way, and, frankly, it is pretty upsetting. The case has now been referred to court, where--if I continue as the attorney--we will have a mess on our hands. So what are the lessons?
First, and most obvious: Don't lie to your lawyer. In the above example, if the man had told me about his time in Jordan, we could have dealt with it. He didn't and so we couldn't. Unfortunately, many immigrants take the advice of their "community" over that of their lawyer. Asylum seekers need to understand the role of the attorney--it is our job to represent you in a process that can be confrontational, and so the government can use information from your past against you. If you don't tell your lawyer about past problems (especially when he specifically asks you), we cannot help you avoid those problems.
Another lesson is that the U.S. government often knows more than you think they know. If you have crossed a border, it's likely that the government knows about it. The Asylum Officer will have access to anything that you said during any previous contacts with the U.S. government (including during visa interviews). The Asylum Officer also probably has access to anything you said in interviews with other governments or the United Nations. So if you lied in a prior encounter with the U.S. government or any other government, you'd be well advised to inform your attorney. That way, he can try to mitigate the damage. Also, in asylum cases, where a person lies to obtain a visa in order to escape persecution, the lie is not necessarily fatal to the asylum claim. See Matter of Pula.
A different area where we see clients get into trouble is with family relationships. Sometimes, a client will say he is single when he’s married, or that he has five children when he has two. Of course, if the client listed different relatives on a visa application, the U.S. government will know about it, and the lie will damage the client’s credibility. Why would a client lie about this? The most generous explanation, which has the virtue of being true in some cases, is that the client considers the listed relative to be his child, but there is no formal adoption and the client does not understand the legal niceties of the question. In many societies, people who raise a relative’s child consider that child their own. As long as the client explains the situation and the Asylum Officer doesn't think the client is trying to hide something, she should be fine, but again, if the client doesn't tell the lawyer, the lawyer cannot properly prepare the case.
Speaking of family cases and cases where the government knows more than you'd think, I had one case where the woman got married, but did not list the marriage on her asylum form (and did not tell me). In fact, she really did not consider herself married--she signed a marriage contract, but never consummated the marriage, and she seemed to have put it behind her. Unfortunately for her, the Asylum Officer somehow knew that she was married. The result: Her case was denied and referred to court. Had she informed me (and the Asylum Office) that she was married, she likely would have been approved--her brother's case was approved under the same circumstances. So again, the lesson is that the government may know more than you think they know.
The bottom line here is that when preparing an asylum application, it is a bad idea to lie. The U.S. government knows a lot. How do they know so much? I don't know. Maybe ask Edward Snowden. But the point is, if you are filing an asylum application and you are not forthcoming with your responses, you risk losing your case.
Originally posted on the Asylumist: www.Asylumist.com.
For some time now, the threat of Islamic extremism has been an important factor in our country's immigration and asylum policies. But two recent--and horrific--events overseas have reminded us about the gravity of that threat.
First is the case of Man Haron Monis, an Iranian national who received asylum in Australia. Last month, Mr. Monis took hostages in a café, forced them to display a Jihadi flag, and demanded to speak to the Australian Prime Minister. By the time the incident ended, two hostages were dead and several were injured. Mr. Monis also died in the confrontation. The incident was only the most recent in a long history of problems for Mr. Monis. Among other things, he had been charged as an accessory in the murder of his ex-wife, he was charged with several counts of sexual assault against various women, and he had notoriously sent hate letters to the families of Australian service members killed in Afghanistan, which also resulted in criminal charges.
The second incident is the massacre at Charlie Hebdo magazine in France. The suspects in that attack seem to have been French nationals of Algerian decent who saw the attack as revenge for the magazine's cartoons disparaging the Prophet Mohamed. At least some of the suspects in that attack have had prior problems with the law, including terrorism-related arrests, and the men seem to have been connected with a Yemeni terrorist network.
So with two fresh examples of Islamic extremists attacks in the West, it seems to me a fair question to ask: Why do we risk allowing terrorists into our country through the asylum and refugee system? Why not simply limit asylum to people who hale from non-Muslim countries? Certainly there are plenty of non-Muslim refugees who need our help. And certainly, as well, there are people not too far on the fringe who--assuming they could not eliminate asylum altogether--would be very happy to limit humanitarian relief to non-Muslims.
There are several ways to address these questions. One way--which I won't discuss in detail but I want to mention--is to talk about historic injustices in the relationship between the Muslim World and the West: Colonization, economic exploitation, repeated military interventions, humiliation. The West's actions in the Middle East have contributed to the problem of Muslim extremism. But we have to live with the world that now exists, however imperfectly that world came to be, and I don't think the West's past failures justify putting our citizens at risk of attack by extremists. In other words, just because we helped create the problem of extremist terrorism does not mean that we shouldn't do everything possible to prevent terrorists from coming to our countries, including--if appropriate--closing the door to asylum applicants from Muslim countries.
However, there are other reasons that I think justify allowing people from all countries to seek refuge here.
For one thing, allowing ourselves to be intimidated by terrorists into modifying our humanitarian values or cutting ourselves off from Muslim people would be a victory for the terrorists. It would mean that we gave in to our fears. Great nations are not bullied by ignorant thugs. We already have strong safeguards in place to identify potential terrorists and criminals, and prevent them from coming to our country. In a future post, I will make some suggestions for how we might further strengthen our defenses.
Second, many of the Muslims that seek protection in the U.S. are people who worked with the United States military or government, or who worked for international NGOs and companies in concert with our efforts (however imperfect) at nation-building. Such people risked their lives and trusted us. To abandon them would be to send a message that America does not stand by its friends. This is a message that we cannot afford to send. If we are not trustworthy, people will not cooperate with us going forward.
Third, allowing terrorists to drive a wedge between our country and moderate Muslims would make the world more dangerous. There will be fewer bridges, not more. We need to keep strengthening ties between the West and the Muslim World. The terrorists want to cut those ties; we cannot let them.
Finally, on a more personal note, most of the asylum seekers I represent come from Muslim countries such as Afghanistan, Iraq, Syria, and Egypt. Almost all of them hold strong pro-Western views (i.e., they believe in the foundational values of our country). Many of them worked with the United States or with Western organizations. Others are political activists, women's rights activists, and gay rights activists. One of them famously (or infamously in his country) made a trip to Israel in an effort to promote peace. Many of my clients have been threatened by the same types of people who committed the murders in Australia and France. Some of my clients have lost family members to Islamic extremist attacks. A good number of my clients continue their political activities after they are granted asylum, as they hope to help bring change to their countries. As a matter of principle, morality, and as a matter of our national interest, I feel we are well-served by offering protection to such people.
Although the news usually reports terrorist attacks, it rarely reports the opening of a new school for girls. It reports threat levels and terrorist "chatter," but it often ignores peace-building efforts, reconciliation, and democratic activism. Many people in the Muslim World want change. We saw that in the Arab Spring. We need to align ourselves with such people and give them our support. We need to stay engaged with the world and not retreat. We need to remain hopeful and not surrender to fear.
Originally posted on the Asylumist: www.Asylumist.com.
To work as an asylum attorney in the era of the backlog, you need to be either an optimist or a masochist. And I'm no optimist. But, as they say, "Fake it until you make it." In that spirit, and in the hope of better things to come in the Year of Our Lord 2015, I present 10 predictions for the new year that hopefully will make you--and more importantly, me--feel better about the future of asylum:
"Sorry kids, you can check in, but you can never leave."
1. The BIA will create a new social group--Backlogged Asylum Seekers: This year, the Board will determine that people stuck indefinitely in an asylum backlog are a Particular Social Group, and that waiting for eternity constitutes persecution. Therefore, anyone in the backlog will automatically receive asylum. Backlog solved. Badda-boom, badda-bing.
2. Detained children: DHS will use the power of Eminent Domain to seize Disney World and convert it into a large open-air prison for children and families. Surprisingly, this will save the U.S. government over $1.7 billion. Since the estimated cost of caring for approximately 60,000 children is $1.8 billion, and a Disney season pass is only $634 per person, the total cost to the U.S. tax payer for "Dis-catraz" will be just over $38 million, a savings of almost 98%.
3. One year asylum bar: After holding rational debate, politely questioning witnesses, and carefully examining evidence, Congress will conclude that American asylum policy is not well served by continuing the one-year bar. A bi-partisan Congress will vote to eliminate the bar, and the President will sign the bill into law. Fox News will provide respectful coverage of the issue, and Michelle Malkin will refer to undocumented immigrants as--wait for it--"human beings."
4. EOIR attorney registry: In 2015, EOIR will actually do something with the attorney registry. I predict that prior to December 25, 2015, EOIR will send every registered lawyer a lovely holiday card. Each card will personally thank us for representing immigrants and will be signed by the Chief Immigration Judge himself. ICE attorneys will be disappointed when they do not receive holiday cards.
5. Eliminate Leap Years: This may not seem asylum-related, but hear me out. I predict that Congress will eliminate leap years in order to speed up court dates. This means that all my Immigration Court cases scheduled for 2027 will be heard 3 days early. On the downside, any case scheduled for February 29 will be re-set to 2042.
6. Following to join: Anyone with children knows that you sometimes need a break from them. That seems to be the reasoning behind the long wait times for I-730, Refugee/Asylee Relative Petitions. "Let's give these poor refugees a nice long break from their children and spouses," the well-intentioned designer of the I-730 process reasoned. But as it turns out, a year-long break (or more) is a bit much for most people. So I predict that in 2015, the I-730 process will be reformed so that it takes less than three months. Once the kids are here, if they need a break, the refugees can always hire a babysitter.
7. Persecutor bar: The persecutor bar will be immediately applied to all current and former members of the U.S. government. Anyone who is a persecutors or who provided "material support" to persecutors will be deported. I wonder whether we will be able to find a country willing to accept so many dangerous persecutors.
8. A new definition of Particular Social Group: Most observers, including this one, believe that we are closer to a Unified Field Theorem than we are to a coherent definition of PSG, but I predict that in 2015, the BIA will come up with a workable, understandable, and fair definition of Particular Social Group. I also predict that someone (probably an immigrant) will discover a simple mathematical formula that explains everything in the universe.
9. Filing for asylum will confer immediate status: Although it is fun in a Thunderdome-sort-of-way to watch asylum seekers struggle to survive for six months without a work permit or a driver's license, I predict that Congress will change the law to allow asylum applicants to immediately obtain employment authorization and a driver's license. So starting in 2015, applicants will be able to engage in such extravagant activities as driving to work, picking their children up at school, and earning money to eat.
10. USCIS Phone System: Thanks to billions in savings from sending all the detained children to Disney World, the government will hire enough telephone operators to answer all calls to the USCIS call center. The operators will be trained to provide substantive, helpful answers, and to make corrections to cases where necessary. Also, much like a PBS telethon, some of the operators will be celebrity guests. I suggest Dave Barry. He's reasonably funny, and except for his end-of-the-year reviews, his schedule is pretty open.
So as you can see, 2015 looks to be a banner year for asylum lawyers and our clients. I hope to see you there.
Originally posted on the Asylumist: www.Asylumist.com.
In a surprise move (at least a surprise to me), President Obama announced that our country would be moving towards normalization of our relationship with Cuba. As part of the deal, the two countries agreed to exchange some political prisoners, and it appears we will be restoring diplomatic relations with Cuba and opening an Embassy in Havana.
Evidence that the embargo is working: A dashing Fidel Castro pre-embargo...
During our long Cold War with Cuba, one element of our “special relationship” has been the Cuban Adjustment Act (“CAA”), a law that allows any Cuban who arrives in the United States to obtain residency here. It’s akin to automatic asylum for any Cuban who reaches U.S. shores.
I have written before about my opposition to this law: In short, I believe that Cubans should apply for asylum in the same way as everyone else. It makes no sense to give automatic asylum to Cubans, especially since other countries—Syria, Somalia, Afghanistan, Iraq to name a few—are much more dangerous than Cuba, and nationals from those countries must apply for asylum in the normal way.
It seems to me that the CAA and our over-all Cuba policy exists because of our government’s decision that this was the best way to isolate the Castro regime and force democratic change on our island neighbor. More specifically, anti-Castro Cubans in Miami pushed our nation’s Cuba policy towards the all-stick, no-carrot approach that—50 years later—has accomplished nothing. Now, it seems attitudes among the Cuban American community have shifted. To be sure, many still oppose normalization, but—so far at least—we have not seen the type of angry, in-the-streets reaction that characterized the Elian Gonzales affair during the Clinton Presidency. Perhaps there is more widespread recognition that the old policy hasn’t worked, and that we need to try something new.
Fidel Castro, visibly aged due to pressure from the embargo.
So now that we are moving towards a new phase in our relationship with Cuba, it makes sense to end the CAA. The situation in Cuba is less dangerous than in many other countries, and so there is no longer any justification for the CAA based on humanitarian reasons (though I believe there really never was a valid justification for the law based on humanitarian reasons). The only logical reason for the CAA was as a propaganda tool against the Castro regime. I doubt this ever really worked (except maybe in the minds of some in the anti-Castro Cuban community), and—given that we are moving towards normalized relations—it certainly makes no sense at all any more.
All of this is not to say that the Cuban regime respects human rights or allows political dissent. It’s clear that the government represses the political opposition, and that it detains and persecutes perceived opponents. But that type of behavior is, unfortunately, all too common in many countries, and it does not justify a blanket asylum for everyone who comes from a country with a poor human rights record. Indeed, it is exactly why we have an asylum system in the first place.
The CAA is inconsistent with our new Cuban policy. When viewed in context of the overall asylum system, it cannot be justified on humanitarian grounds. It’s time to end the CAA and move towards a new relationship with Cuba.
Originally posted on the Asylumist: www.Asylumist.com.