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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.
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.
If you asked my clients their number one complaint about me, it's that they think I take too long to prepare and file their affirmative asylum cases. Conversely, if you asked me my number one complaint about my clients, it's that they are always pushing me to file their cases as quickly as possible. Since this blog is written by me, and not by my clients, I can tell you unequivocally that I am right and they are wrong. Here's why--
Going fast does not always get you the result you want.
First and foremost, it takes time to properly prepare and file an asylum case. Even in a very strong case--and especially in a case with a lot of evidence--it is important to make sure that all the letters and documents are consistent. That translations are correct. That dates, which often use a different calendar, are properly converted to the Western calendar. That the dates in the asylum form match the dates in the affidavit, and that passports, visas, and other documents make sense with the client's chronology as she remembers it. You would be surprised how often there are problems with dates, chronologies, and translations. In fact, it is the rare case that does not involve my staff or me finding major mistakes in the documents. While this is usually the result of carelessness on the part of the client or a witness, such errors can be fatal to an asylum case, where inconsistencies are often seen as evidence of fraud. There is simply no way around it, it takes time to review all this and put together a consistent and well-crafted application.
Second, any asylum attorney who is any good will probably be busy, especially if his prices are reasonable. Indeed, the only way to keep prices reasonable is to do these cases in bulk. Therefore, if you expect to pay a reasonable price for your case, you can probably expect to wait a bit to have it filed. In our office, it typically takes one to two months to prepare and file an affirmative asylum case. Although the cases do not need to be completely finished when we file (because we can submit supplemental material a week prior to the interview), they need to be mostly done. Why? Because the timing of interviews is unpredictable. The interview may not occur for two months (or more) after we file the application, but it might occur in four weeks. So if the case is not near completion at the time we file, we may not have time to properly finish it and review everything before the interview.
Finally, attorneys--you may be shocked to learn--are human. And humans make mistakes. When we rush, we tend to make more mistakes, and mistakes sometimes cause clients to lose their cases. When we have time to prepare a case, think about the facts and the law, strategize about how to resolve problems (and most cases have problems of one sort or another), research country conditions, and carefully review all the evidence, we minimize the chances for mistakes and maximize the odds of winning.
There are, of course, very legitimate reasons for wanting to file a case quickly--separation from family, stress, uncertainty, fear of being out of status, inability to work. Probably the most legitimate reason to file quickly is to meet the one-year asylum filing deadline (asylum applicants are required to file for asylum within one year of arrival in the United States; people who file after one year risk being ineligible for asylum). But as long as there is not a one-year issue, it is far better to take a few extra weeks to file a case correctly than to rush. In my humble (and correct) opinion, if you prioritize speed over winning, you are misplacing your priorities. If you lose your case, it will likely be referred to an Immigration Judge, which can easily take several years to resolve.
So take a breath. Relax. And take the time to do your case right. Going a bit slower at the beginning may save you a lot of time in the end.
Originally posted on the Asylumist: www.Asylumist.com.
The U.S. Department of Justice recently gave notice that it would be seeking the death penalty in the case of Dzhokhar Tsarnaev, the surviving Boston Marathon bomber. Mr. Tsarnaev and his brother allegedly killed three people in the bombing and one more person during their flight. Over 260 people were maimed or injured.
The DOJ determined that the death penalty is appropriate in the case because of the "heinous, cruel and depraved manner" that the murders were committed, that there was "substantial planning and premeditation," multiple victims, and a "vulnerable victim" (a reference to Martin Richard, an eight year old boy killed in the attack). The notice also mentions several "non-statutory aggravating factors," including the fact that Mr. Tsaenaev--
received asylum from the United States; obtained citizenship and enjoyed the freedoms of a United States citizen; and then betrayed his allegiance to the United States by killing and maiming people in the United States.
Other "non-statutory aggravating factors" are that Mr. Tsarnaev targeted the "iconic" Boston Marathon and that he showed a lack of remorse for his crimes.
I must admit that I have mixed feelings about the death penalty. I don't believe it serves as a deterrent, and I do think there are serious racial and class disparities in its application. In addition, there is a real danger that innocent people or people with mental disabilities will be put to death. On the other hand, if the death of the murderer brings comfort or closure or a sense of safety to the victim's friends and family, I believe those feelings are legitimate and should be given considerable weight.
In some ways, the Tsarnaev case is less complicated than the average death penalty case. There are no issues (at least I don't see any) regarding race, class or mental health, and there seems to be no doubt that Mr. Tsarvaev is guilty. But what about the fact that Mr. Tsarnaev is a refugee?
In its death penalty notice, the DOJ mentions Mr. Tsarnaev's asylum status as an aggravating factor--We helped him by granting him asylum, and then he betrayed us by bombing the marathon. Mr. Tsarnaev's attorneys will, no doubt, view his asylum status quite differently, and could try to use that status as a mitigating factor. The relevant U.S. Code section (18 U.S.C. § 3592) lists several possible mitigating factors, including the following:
Impaired capacity.— The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.
Duress.— The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.
Disturbance.— The defendant committed the offense under severe mental or emotional disturbance.
Other factors.— Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.
The first three factors seem like a bit of a stretch, but you can imagine some type of argument tying Mr. Tsarnaev's mental state to the trauma of being a refugee. Indeed, I would guess that there are at least two types of trauma that refugees suffer: The trauma of the events that led them to flee their country, and the trauma of the refugee/resettlement process itself. There are certainly examples of refugees who engage in self-destructive behavior (I've written about that issue here), but without something more--such as a diagnosed mental illness--I doubt refugee status alone would qualify Mr. Tsarnaev for mitigation under one of the first three factors listed above.
The fourth factor--the catch all--provides the most likely opportunity for Mr. Tsarnaev to demonstrate how his status as a refugee might mitigate his punishment. He could argue that he was young, isolated in a new country, heavily reliant on his older brother (who participated in the bombing and was later killed), and influenced by terrible events in his homeland. While I can believe that Mr. Tsarnaev's refugee status helped shape, and perhaps distort, his worldview, I have a much harder time accepting these problems as a mitigating factor here.
Had his crime been substance abuse, or even some type of impulsive, violent act, I could see how refugee status might be viewed as a mitigating factor and how there might be opportunities for positive intervention in his life. But in this case, Mr. Tsarnaev and his brother planned, prepared, and carried out a terrorist attack. This is not the type of crime that results from a traumatic past. It is the type of crime that comes from having a distorted world view and a total disregard for human life.
I have known many refugees, and many people who have suffered severe trauma--much more severe than anything I have heard about in the Tsarnaev case. While most such people work hard to overcome their past difficulties, some turn to drugs or alcohol; others commit crimes. But none are like the Tsarnaevs. Their's was a carefully planned and orchestrated act. To allow Dzhokhar Tsarnaev to use his refugee status as a mitigating factor would be an insult to the many refugees who have overcome their terrible past. While there may be other factors that allow Mr. Tsaenaev to avoid the death penalty, his status as a refugee should not be one of them.
Originally posted on the Asylumist: www.Asylumist.com.
Updated 02-14-2014 at 10:04 AM by JDzubow
If imitation is the highest form of flattery in art, immigration is the highest form of flattery in politics. The decision to move to a particular country demonstrates the belief that that country is worth living in. So as the Winter Olympics in Sochi, Russia approaches, it will be interesting to compare the number of athletes who seek asylum in Russia to the number who sought asylum during the 2012 Games in Great Britain.
To make this comparison, we first have to determine how many athletes sought asylum in 2012. I have not seen a concrete count of the number of athletes who "defected" during the 2012 Games. This is because asylum is confidential, and so the British government has not published any figures on Olympic asylum seekers. However, one source estimates that at least 20 athletes and coaches defected during the Games. Cameroon had the most defections: Seven of its 37 athletes did not return home.
When athletes (or anyone) seeks asylum, we can assume that there is a "push" and a "pull." The "push" is the bad conditions in the home country that lead the person to flee, and the "pull" is the good conditions in the country where the person seeks refuge. The "pull" of the UK is obvious: It is a developed, liberal democracy that generally respects human rights and offers opportunities (educational, professional) for its residents. People fleeing persecution (or economic deprivation) would generally be lucky to start a new life there.
The "pull" of Russia is less obvious. For one thing, Russia is not known as a welcoming destination for non-Russians. Racism and xenophobia are problems, and many minorities have been targeted and killed. Homophobia is also rampant, and institutionalized (though the mayor of Sochi claims that there are no gays in his city). In terms of its economy, Russia is not as an attractive destination as Western Europe or the U.S., but it is better than many places. Finally, the Russian language is not spoken by nearly as many people as English, and so this might create some disincentive for potential asylum seekers. For all these reasons, I doubt we will see many athletes defecting to start new lives in Russia.
To be fair, many of the source countries for asylum seekers do not send athletes to the Winter Olympics. But even if they did, I doubt many of them would desire to resettle in Russia. Conditions there are simply not conducive to starting a new life, particularly for people who come from Africa or Central Asia.
There have, of course, been a few high profile asylum seekers in Russia. Edward Snowden is one, but I don't think he deliberately chose Russia as his destination country. Instead, it seems he got stuck there on the way to somewhere else. So the Russians really can't claim him as someone who had a burning desire to resettle in their country.
Another immigrant to Russia is Gerard Depardieu, a "tax refugee" from France who (sort-of) left his homeland due to high taxes and (kind-of) settled in Russia. I suppose in Mr. Depardieu's case, there was a "pull" from Russia, but that seems more to do with his friendship with President Putin (who summarily granted him citizenship last year) than with his desire to seek a better life there. Indeed, though Mr. Depardieu has citizenship and an address in Russia, it is unclear how much time he actually spends there.
The bottom line is, I don't think Russia is seen by many as a desirable place to resettle, and I expect that we won't see many athletes defecting during the upcoming Games. Perhaps the Russians will be pleased by this (Russia for the Russians!). But maybe upon reflection, they will find that it demonstrates a darker truth about the culture and society that they have created.
Originally posted on the Asylumist: www.Asylumist.com.