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Jason Dzubow on Political Asylum

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  1. Waiting Is the Hardest Part

    The asylum backlog--both in court and at the asylum office--is years long. Hundreds of thousands of applicants are waiting, seemingly forever, to present their cases and to receive decisions. Many of these people are separated from children and spouses. Even for those who are not separated from family, the lengthy waits and uncertain outcome can have a serious psychological impact. Indeed, the human tragedy of the asylum backlog is apparent to anyone involved with the system.


    Some liminal spaces are more fun than others.


    A recent article by Professor Bridget M. Haas, Citizens-in-Waiting, Deportees-in-Waiting, Power, Temporality, and Suffering in the U.S. Asylum System, helps quantify the psychological suffering of those who wait. Prof. Haas followed 26 asylum seekers from seven countries between 2009 and 2012. Only four of the study participants received asylum from the Asylum Office. Twenty-two were referred to court, and the majority of those had their asylum cases denied. Seven of Prof. Haas's subjects left the U.S. or were deported during the period of her study.

    The Professor's findings largely comport with what you might expect--

    For asylum seekers, my data demonstrate that the liminality associated with asylum—of being “betwixt and between” a particular status or identity—is best understood not as a time of transition but rather as a time of rupture, as “a discontinuity of subjective time, in which powerful forces operate to change perceptions of time, space, and personal values.” The discontinuity wrought by asylum-seeking manifests as suspended life.

    In other words, the uncertainty of the waiting period leaves asylum applicants unable to move forward with their lives. They are literally stuck waiting. The problem seems to be compounded by the disconnect between asylum seekers’ expectations and the reality of the asylum process—

    Most participants had expected the asylum process to last “a couple of days” or “a matter of weeks.” That the process... would be such an arduous and protracted one was beyond their imaginations. Before filing an asylum application... participants had not conceived of a scenario in which their stories and personal histories would be denied credibility or be deemed undeserving of protection…. Ultimately, the disjuncture between expectations of treatment in the United States and the reality they faced was a source of confusion and distress for asylum seekers.

    Prof. Haas characterizes the asylum waiting period as one of "existential limbo” where "the very viability of their lives [is] in a state of profound uncertainty." This manifests in different ways, including "extreme anxiety," "powerlessness," and even suicidal thoughts. Asylum applicants had a "sense of being beaten down" by the process. They felt "hopelessness, despair, and futility." Many felt traumatized by the wait, and "experienced waiting itself... as a form of violence," which "inflict[ed] enduring psychic distress." Also, "waiting in limbo was understood as traumatic because of the life-and-death stakes it inhered for asylum seekers and the profound anxiety this produced."

    The state of limbo often prevents asylum seekers from "taking future-oriented actions," such as furthering their education, because of a "sense that these actions would be done in vain if [they] were to be deported."

    All this rings true for me. I observe my clients' suffering first hand, and in some cases--especially for those separated from young children--the damage caused by the asylum process can be worse than the harm caused by the persecution.

    Prof. Haas writes about her subjects' coping methods. She notes that "asylum seekers often engaged in activities that offered a distraction from the pain of waiting." "Other asylum seekers attempted to resist suffering through the refusal to acknowledge the present state of limbo." Still others turn to their religion for a sense of hope.

    These observations align with how I see my clients coping. I also think it is helpful to try to exert some control over the situation. For example, asylum seekers can attempt to expedite their cases. Even if this does not succeed, it provides an avenue for action, which may be better than passively waiting. Asylum seekers can also try to overcome the inertia of limbo by "taking future-oriented actions," even if that is difficult: Take a class, go to therapy, buy a house, start a family. In a case of giving advice that I probably could not accept myself, I advise my clients to live as if they will be staying here permanently. It's not easy, but it beats the alternative (of going insane).

    Finally, Prof. Haas's article has prompted me to think about the concept of "liminality" in asylum. The word "liminal" derives from the Latin "limen," meaning "threshold" or doorway. It refers to the in-between times and places in life.

    In Judaism, and I imagine in many other religions, liminal spaces are often viewed as holy. We place a mezuzah (a decorative case containing verses from the Torah) in the doorway of our home. We get married under a chuppah (a temporary canopy that symbolizes the new home the couple will create). We Jews spent 40 years wandering the dessert in order to transform from slaves to free people. And of course, the Bar or Bat Mitzvah marks the traditional transition from child to adult.

    Who are these rituals for? And how do they help? Prior to the Exodus, when G-d decided to kill the first born sons of Egypt, G-d instructed the Jews to place blood on their door posts, so the Angel of Death would pass over their homes. One rabbinic discourse explores whether the blood was on the outside or the inside of the doors. Was it meant for G-d, the Egyptians or the Jews? I like the idea that the blood was on the inside of the door, that it was meant to remind the Jewish people of why we were being spared, and of the sacrifice that all Egyptians were making for our freedom. I think there is value in such reminders.

    Perhaps by specifically noting these liminal times as transitory, and by recognizing their transformative nature, we can more easily endure the waiting. Whether it is even possible to view the asylum wait time in these terms, I do not know. But one way or another, this period will end. Each of us has only so much control over our own destinies. For asylum seekers, the future is more uncertain than for many others. We are all left to do our best in the time that we have. Put another way, we are all precarious fiddlers on the roof, and so we might as well play the best song that we can.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, delay Add / Edit Tags
  2. Arrested and Charged with Lying in an Asylum Case

    Last month, my client was arrested by the FBI and charged with visa fraud, which carries a maximum penalty of 10 years in prison. He stands accused of lying on his I-589 asylum application and at his asylum interview. The client was held for a day or two and then released with instructions to appear in federal court.

    If rich white guys can (theoretically) get into trouble for lying, you can too. So tell the truth!

    My client's case is both a cautionary tale and a sign of the times, so I wanted to discuss it here. But I am somewhat limited in what I can say, given that he has an active criminal case (not to mention a pending asylum case).

    The charging documents in the criminal case allege that my client traveled from his home country, Country A, to a third country, Country B, and registered with the United Nations using a UNHCR Refugee Resettlement Form ("RRF") in 2010. The RRF allegedly includes a photo of my client and contact information for him in Country B. The United Nations tried several times to reach the client in 2014 and 2015, but when he could not be reached, the UN closed his refugee resettlement case.

    The documents also allege that my client applied for a non-immigrant visa to the United States, and then came to this country in 2013. After arriving in the U.S., my client applied for asylum using form I-589.

    The asylum form, Part C, Question 2.B., asks whether "you, your spouse, your children, your parents, or your siblings ever applied for or received any lawful status in any country other than the one from which you are now claiming asylum?" If the answer is "yes," the applicant must provide "the name of each country and the length of stay, the person's status while there, the reason for leaving, whether or not the person is entitled to return for lawful residence purposes, and whether the person applied for refugee status or for asylum while there, and if not, why he or she did not do so." According to the charging document, my client did not inform USCIS that he applied for refugee status while in Country B. The FBI charges that he deliberately omitted this information in order to conceal his past travels or possible legal status in Country B.

    The charging documents also refer to my client's interview at the asylum office. According to the documents, the Asylum Officer asked whether my client had been in Country B, and he denied having ever been there.

    Based on the information on the form and his testimony at the interview, the charging documents allege that my client lied under oath, and that his lies constitute visa fraud in violation of 18 U.S.C. § 1546(a).

    Whether or not the government has a strong case against my client, and my own opinion of his case (and his veracity) are not issues I can discuss here. Instead, I want to talk about two other points. First, what this charge means for asylum seekers in general, and second, whether my client's criminal case represents a new trend from the Trump Administration or is simply business as usual.

    First, what does it mean that an asylum seeker can be charged with a crime for allegedly lying on his application? In fact, this is nothing new. The signature page of the asylum form clearly indicates (in language that no one ever bothers to read) that lying on the form carries criminal and immigration consequences, including possible imprisonment of up to 25 years.

    Frankly, I am not all that sympathetic to people who lie to obtain immigration status in the United States. Our asylum system was created to help people fleeing persecution. Asylum seekers who lie damage the integrity of that system and erode public confidence in the asylum process. Worst of all, they harm legitimate asylum applicants by causing their cases to move more slowly and by making asylum more difficult to win. Coming to a new country and requesting asylum comes with certain obligations, such as learning the rules of the new country and following those rules, and that is what asylum seekers must do.

    On the other hand, I do understand why some people lie. Many asylum seekers come from countries where the government is little more than a criminal institution. They have no faith in government because their life experience teaches them otherwise. To survive in such places, people must regularly lie to their governments or pay bribes to get things done. It's not surprising that when such people reach the U.S., they have little compunction about lying on their immigration forms.

    Further, many people coming to the United States are at the mercy of the community members they know who are already here. If such people are honest, informed, and willing to help, asylum seekers will get good advice. But if the community members happen to be dishonest or ill-informed, or if they are trying to take advantage of their countrymen (as happens all too often), the asylum seekers may be convinced to lie, even when it is against their own best interests. In many cases, the "lies" are grounded in naivete rather than mendacity. They are more a product of bad luck than moral turpitude. But the rules is the rules, and people who do not follow the rules may have to face the consequences.

    My second question is whether the criminal case against my client is a sign that the Trump Administration is ramping up prosecutions against asylum seekers?

    One anecdote does not a trend make. And as usual, the best source of statistical information is TRAC Immigration. TRAC's most recent report about prosecutions for immigration violations (current as of October 2017) reveals something of a mixed bag.

    Prosecutions for all immigration violations are up 3.4% from 2016, and such prosecutions have been on an upward trajectory since about April 2017, but they are still significantly below the peak period of immigration prosecutions in 2012. The vast majority of these prosecutions relate to Re-entry of a Deported Alien (8 U.S.C. § 1326 - 1,551 cases filed in October 2017) and Bringing In and Harboring Certain Aliens (8 U.S.C. § 1324 - 295 cases filed in October 2017). A minority of prosecutions (54 cases) were filed under 8 U.S.C. § 1546 (the statute my client was charged under), and another dozen or so cases were filed based on other fraud-related charges (we do not know how many of these cases involved asylum seekers, and how many involved other types of immigration fraud).

    For comparison's sake, the most recent data shows that non-citizens are applying for asylum at the rate of about 12,000 per month (this only counts affirmative cases, not court cases), so only a very small percentage (about 0.6% at most--and probably much less) of asylum seekers are being criminally charged with fraud. Further, according to the TRAC data, the number of aliens charged under 8 U.S.C. § 1546 has actually declined over the past year.

    So the short answer is probably that, while prosecutions for immigration fraud in general are on the increase, in absolute numbers, very few people are being charged, and there is (so far) no real evidence pointing to an increase in prosecutions for asylum fraud. Of course, the best way to ensure that you don't defy the odds and end up in criminal court is to tell the truth.

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

    Updated 01-03-2018 at 09:38 AM by JDzubow

    Tags: asylum, fbi, fraud Add / Edit Tags
  3. On the Benefits of Having a Lawyer

    A recent op-ed in the Wall Street Journal ("Immigrants Need Better Protection--From Their Lawyers" by Professor Benjamin Edwards) laments the poor quality of immigration attorneys, and postulates that as a group, “the private immigration bar now contains the worst lawyers in all of law.”


    It's easy to know which barber to choose (hint: Barber A), but finding a good immigration lawyer can be more challenging.

    The author’s primary solution to the problem of “incompetent” and “predatory” lawyers is to track the success rate of each attorney and then make that information public. In this way, potential customers (i.e., people being deported) can make more informed decisions about their choice of counsel.

    Among practicing lawyers, Prof. Edwards's solution was largely panned as unworkable, ivory-tower thinking. While I generally agree that there is a problem (which I’ve written about in a charmingly-titled piece called, Do Immigration Lawyers Suck?), I also agree with my colleagues that Prof. Edwards’s solution is unworkable (if you’re interested in why it is unworkable, here are some thoughts from Jennifer Minear at AILA).

    While some immigration lawyers are less-than qualified for their jobs, it is none-the-less true that having a lawyer for an asylum case significantly increases the likelihood of a good outcome.

    A new report from TRAC Immigration provides some specific data about asylum cases and representation. The report breaks down the statistics by country, which is quite helpful, as asylum seekers can look for their country, get a sense for how many of their landsmen are represented, and see the success rate for represented and unrepresented applicants. The report covers Immigration Court cases only (from FY 2012 to FY 2017), and does not include cases at the Asylum Office.

    The bottom line is this: For almost all countries, asylum applicants with lawyers are two to four times more likely to win their cases in court, as compared to unrepresented applicants from the same country. There are, of course, some caveats.

    One is that, people with good cases are more likely to have attorneys. This is because people with money, educated people, and people who speak English all have an advantage navigating the U.S. immigration system. Such people are more likely to find a lawyer, and they are also more able to present their cases. People who are detained, who are not educated, and who do not speak English will have a harder time presenting their cases, and will also be less able to obtain representation. In that sense, I think the statistics exaggerate the benefits of having an attorney.

    But even considering these socio-economic factors, the difference between represented and unrepresented applicants is pretty significant, and in the face of these statistics, it’s hard to argue that lawyers don’t help, Prof. Edwards not-with-standing.

    What’s also interesting here is that lawyers provide a multiplier effect on the likelihood of winning. So, for example, an unrepresented case from China has about a 21% chance of success, while a represented case has about an 82% chance of success—a difference of almost four times. And, of course, 82% is a lot better than 21%. A case from El Salvador, on the other hand, has only about a 4% chance of winning without a lawyer, but has almost a 17% chance for success with a lawyer—again, a difference of four times, but in absolute terms, the difference of 4% versus 17% is a lot less significant than 21% versus 82%. Put another way, when the average Chinese applicant hires an attorney for her asylum case, she appears to be getting a lot more for her money than the average Salvadoran applicant.

    Why should this be? Why should a lawyer multiply the chances of winning rather than increase the likelihood of victory arithmetically by, say, 10 percentage points across the board (so that the Chinese applicant would go from a 21% chance of success to 31%, and the grant rate for Salvadorans would increase from 4% to 14%)?

    The short answer is that I don’t know. Maybe one explanation is that asylum seekers from certain countries present claims that more easily fit within the legal parameters of our asylum system. So cases from China—which often involve political or religious persecution—are more amenable to a grant than cases from El Salvador, which often involve a fear of harm from criminals. Our asylum law quite clearly protects people fleeing religious or political persecution, but it offers little for people fleeing crime. Under this theory, lawyers representing Chinese applicants can help ensure that their cases are presented in a manner that meets the requirements for asylum. It is more difficult to do this for Salvadorans. Or put in more classic terms, even a great lawyer can’t make a silk purse from a sow’s ear.

    Another interesting tidbit from the TRAC numbers is the level of representation in each community. Almost 96% of Chinese applicants had attorneys. Contrast that with Salvadorans, who were represented in only about 73% of cases. Looking at the top 10 source countries for asylum seekers, Haiti had the lowest rate of representation—only about 56% of Haitian asylum seekers had lawyers.

    Finally, while it may be somewhat early to discuss trends since President Trump took the helm, the numbers for FY 2017 show an increase in the absolute number of asylum cases decided by Immigration Courts (from 22,312 in FY 2016 to 30,179 in FY 2017) and in the percentage of asylum cases denied (from 56.5% denied in FY 2016 to 61.8% denied in FY 2017). While these numbers are not encouraging, the upward trend in asylum denial rates actually began in FY 2012, under President Obama (denial rates have steadily risen from 44.5% in FY 2012 to 61.8% today).

    So what are asylum seekers to make of all this? It seems to me that the most important take-away is that a lawyer in court can significantly increase the likelihood of success, as long as that lawyer is competent and makes an effort to help you with your case. I’ve written previously about the cost of a lawyer, and what the lawyer should do for you. I’ve also written about how to find a free lawyer if you cannot afford to hire one. If you are careful, if you ask questions, and if you make an effort to find an effective attorney, you can greatly increase the possibility of winning your asylum case in court.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. Asylum for People with TPS

    In the last few weeks, the Trump Administration has moved to end Temporary Protected Status ("TPS") for Nicaraguans and Haitians, and we can expect TPS programs for other countries to end as well. There are about 321,000 people with TPS in the U.S. Most (195,000) are from El Salvador. There are about 2,500 Nicaraguans with TPS and 57,000 Haitians.


    Nicaraguan TPS Holders: One more year to party like it's 1999.

    The decision for Nicaraguan TPS came on November 6, 2017, though USCIS delayed the effective end-date of the program for 12 months "to allow for an orderly transition before the designation terminates on January 5, 2019." Nicaraguan TPS went into effect in 1999, after Hurricane Mitch devastated the region.

    The Department of Homeland Security ("DHS") announced an end to the Haitian TPS program on November 20--

    To allow for an orderly transition, the effective date of the termination of TPS for Haiti will be delayed 18 months. This will provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. It will also provide time for Haiti to prepare for the return and reintegration of their citizens.... Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the respective termination or extension periods.

    USCIS also signaled the likely end of TPS for Honduras, but delayed the decision until later. "As a result of the inability to make a determination, the TPS designation for Honduras will be automatically extended for six months from the current January 5, 2018 date of expiration to the new expiration date of July 5, 2018."

    Given these changes, the fate of the remaining TPS beneficiaries is uncertain. "Recognizing the difficulty facing citizens of Nicaragua – and potentially citizens of other countries – who have received TPS designation for close to two decades," Acting DHS Secretary Elaine Duke called on Congress to "enact a permanent solution for this inherently temporary program." The idea that Congress will act to protect TPS beneficiaries seems unlikely, at best.

    So if you have TPS and you are concerned about the end of the program, what can you do?

    People losing TPS status potentially have a number of options, such as claims to U.S. citizenship, Cancellation of Removal, Adjustment of Status based on a family relationship or a job, a residency applications based on being a victim of a crime or human trafficking. Talk to a lawyer to review your specific situation and evaluate your eligibility (if you cannot afford a lawyer, there might be free services available to you).

    For many TPS recipients, however, the only viable option may be asylum. To win asylum, an applicant must demonstrate that she faces a well-founded fear of persecution on account of her race, religion, nationality, political opinion or particular social group. In other words, to win an asylum case, you need to show that someone wants to harm you for one of these reasons. If you fear return because your country is generally crime-ridden or war-torn, that is probably not enough to win an asylum case. You need to show a specific threat based on a protected ground (I’ve written in more detail about this issue here).

    Most of the “protected grounds” are pretty obvious. If someone in your country wants to harm you because they do not like your religion or race or political opinion, that is easy to understand. But what is a “particular social group”? The law defining particular social group or PSG is complex, and different courts have reached different conclusions about what constitutes a PSG. For purposes of this blog post, it is easier to give some examples of PSGs, and then if you think you might fall into one of these categories (or something similar), you can talk to a lawyer. Some common PSGs include members of a family or tribal group, LGBT individuals, women victims of FGM (female genital mutilation) or women who fear FGM, and people who are HIV positive. Other groups of people that some courts–but not others–have found to constitute a PSG include members of a profession (doctors, journalists, etc.), former police officers, former gang members, former U.S. embassy workers, street children, people with certain disabilities, people who face domestic violence, union members, witnesses/informants, tattooed youth, perceived wealthy individuals returning from abroad, and “Americanized” people. These last two PSG groups might be of particular interest to TPS recipients.
    Creative lawyers (and asylum applicants) are coming up with new PSGs all the time, but if you can fit your case into a group that is already recognized as a PSG, that certainly increases the likelihood that your case will succeed.

    To win asylum, you also need to show that someone (either the government or someone who the government is unable or unwilling to control) wants to “persecute” you on account of a protected ground. You will be shocked to know that the term “persecution” is not clearly defined by the law, and different courts have come up with different–and inconsistent–definitions. Persecution is usually physical harm, but it could be mental harm or even economic harm. An aggregation of different harmful events can constitute persecution.

    In addition to all this, an asylum applicant must show that he filed for asylum within one year of entering the United States or that he meets an exception to this rule. I expect that this will be a particular issue for TPS recipients, since most have been here for years. If you have not filed within a year of entry and you do not meet an exception to the one-year rule, then you are not eligible for asylum. You may still qualify for other relief, which is similar to asylum but not as good: Withholding of Removal and Torture Convention relief.

    One piece of good news is that TPS is considered "extraordinary circumstances" excusing the one-year asylum filing deadline. See 8 C.F.R. § 208.4(a)(5)(iv) ("The applicant maintained Temporary Protected Status... until a reasonable period before the filing of the asylum application."). This means that it is probably important to apply for asylum before your TPS expires. Whether people who were in the U.S. unlawfully before they received TPS can meet an exception to the one-year rule, I am not sure, but for people in this situation who fear return to their country, it is certainly worth exploring.

    Another possible exception to the one-year rule is “changed circumstances.” Maybe it was safe for you in your country, but then something changed, and now it is unsafe. If that happens, you need to file within a “reasonable time” after the change–hopefully, within a month or two. If you wait too long after the change, you will not meet this exception to the one-year rule.

    For TPS recipients, asylum may be a last-ditch effort to remain in the U.S., and it may be difficult to win such a case. However, there are some advantages to seeking asylum. First, despite a crackdown on non-citizens, the Trump Administration has not moved to eliminate asylum. Such a move would be very difficult anyway, since asylum is written into the law (based on a treaty signed by the United States in 1968) and cannot be eliminated without Congressional action. So asylum should remain an option for the foreseeable future. Second, 150 days after you file for asylum, you can apply for a work permit. The work permit is valid for two years, and is renewable for the duration of the asylum case. Finally, the asylum process is slow. Normally, asylum delays are horrible for applicants (and for their attorneys), but if you are trying to delay your deportation until a new Administration comes along, asylum might do the trick.

    If you have TPS, it is important to start considering your options now. Talk to a lawyer or a non-profit organization about your situation to see what you can do. Since we can't expect much (besides trouble) from the government, non-citizens must use the tools at their disposal to protect themselves. Asylum is one such tool.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, tps Add / Edit Tags
  5. The Perils and Pitfalls of Applying for a Green Card

    In the past few weeks, we’ve had two former asylum clients return to our office for help after USCIS denied their applications for citizenship. The applications were denied due to mistakes the former clients made on their I-485 forms (the application for a green card). These cases illustrate the danger of incorrectly completing the I-485 form, and this danger is particularly acute for people with asylum.


    The new Green Card application process.

    Let’s start with a bit of background. After a person receives asylum, she must wait for one year before applying for her lawful permanent resident (“LPR”) status (her green card). The form used to apply for the green card is the I-485. In the good old days (a few months ago), this form used to be six pages. Now it is 18 pages. The old I-485 form contained 32 yes-or-no questions; the new form contains 92 such questions.

    Many of these questions are difficult for me to understand, and I am a trained lawyer who speaks reasonably decent English. So you can imagine that people with more limited English, who are not familiar with the complicated terms and concepts contained in some of the questions, might have trouble answering.

    In my clients’ cases, two questions in particular caused them trouble (these are from the old I-485). The first question was, “List your present and past membership in or affiliation with every organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other place since your 16th birthday.” Both clients had been involved with political parties, but were no longer members of those parties in the United States. The clients did not carefully read the question, and instead of listing their “past membership,” they instead answered “none” (because they are no longer members).

    The second question asked whether the clients had ever been “arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations.” In fact, my clients had never been arrested for “breaking or violating any law or ordinance.” They were arrested for exercising their supposedly-lawful political rights, and they were correct to answer “no” to this question. Nevertheless, USCIS viewed their answers as deceptive.

    My clients’ problems were compounded by the fact that they were never interviewed for their green cards, and so a USCIS officer never went over the questions with them and gave them an opportunity to correct the errors.
    The result of all this—confusing questions, carelessness, and no interview—was that my clients obtained their green cards, but also sowed the seeds for future problems. Five years later, these problems appeared when the clients tried to naturalize, and USCIS went back and carefully reviewed their prior applications.

    To me, my clients’ errors were clearly honest mistakes. Indeed, in their asylum applications, the clients had already informed USCIS about their party memberships and about their arrests, and so they had nothing to gain—and everything to lose—by failing to mention these issues in the I-485 form. But that is not how USCIS sees things. To them, the errors were “misrepresentations,” which disqualified my clients for citizenship.

    To solve the problem, my clients will likely need to apply for waivers (an expensive application to seek forgiveness for making misrepresentations). Given that they are asylees, and that the misrepresentations were relatively minor, I suspect the clients will ultimately qualify for waivers and—eventually—become U.S. citizens. But between now and then, they will face a lot of unnecessary stress and expense. Unfortunately, this is the reality now-a-days for all applicants: If you leave yourself vulnerable, USCIS will bite you.

    So what can be done? How can you protect yourself when completing the form I-485?

    The key is to read each question carefully and make sure you understand what it means. This is time consuming and boring, but given that USCIS is looking for excuses to deny cases and cause trouble, you have little choice if you want to be safe.

    Even using a lawyer is no guarantee. Until recently (when USCIS started looking for reasons to deny cases), I had a tendency to gloss over some of these questions. I am more careful now, but it’s not easy. Many of the questions are ridiculous: Are you a prostitute? Did you gamble illegally? Were you a Nazi in WWII? But intermingled with these questions are others that require closer attention: Did you ever have a J visa? Have you ever received public assistance? Have you ever been denied a visa? It’s easy to skim over these, but the consequences of an erroneous answer can be serious.

    Also, some questions are tricky, and can’t easily be answered with a “yes” or a “no.” For example, my clients indicated that they had not been arrested for a crime, and this was correct, but they had been arrested for their (lawful) political activities, and USCIS took their answers as misrepresentations. What to do? When we complete I-485 forms and we encounter questions like this, we normally check “no” (or “yes” if that seems more appropriate) and circle the question. Next to the question, we write, “Please see cover letter,” and on the cover letter, we provide an explanation (“I was never arrested for a crime, but I was arrested by my home government for political reasons”). At least this avoids the problem of USCIS labeling your answer a misrepresentation.

    In the end, the only real solution here is to read each question carefully, make sure you understand the question, and answer it appropriately. If the question is not amenable to a yes-or-no answer, or if you think an explanation is required, circle the question and provide an explanation. If you don’t understand something or are not sure, ask for help. It’s best to get the form correct now, even if that involves extra time or money, than to make mistakes that will cost you later on.

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