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Jason Dzubow on Political Asylum

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  1. We're All in Atlanta Now

    Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the "prosecutors" in Immigration Court) to take charge of the Immigration Courts and the "prosecutors" offices for the entire United States. A third Atlanta OCC attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).


    If you're feeling down about Georgia exports, here's something to love.

    Before we get to those attorneys, let's first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.

    It's true that the Office of the Chief Counsel ("OCC") and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.

    For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.

    Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.

    Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC's position again points to an agency willing to put “winning” ahead of justice.

    With this background in mind, let's turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.

    Tracy Short - ICE Principal Legal Advisor
    : Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he "oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States." These are the attorneys who serve as "prosecutors" in Immigration Court, among their other tasks. According to his ICE biography, "From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel." Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.

    While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.

    James McHenry - Acting Director of the Executive Office for Immigration Review ("EOIR")
    : In a move characterized as "unusual" by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation's immigration court system. Judge Schmidt notes that, "While Judge McHenry has stellar academic and professional credentials, and is an 'EOIR vet,' having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ." In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.

    Indeed, Judge Schmidt's characterization of Judge McHenry as an "EOIR vet" seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.

    Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.
    Whether Judge McHenry's "acting" role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country's immigration court system, with hundreds of judges and support personnel to oversee.

    Gene Hamilton - Counsel to DHS Secretary
    : Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration's travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.

    So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country's immigration system. Given their backgrounds and experience (or lack thereof), it's difficult to be optimistic about how that system will fare under their watch.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, atlanta, trump Add / Edit Tags
  2. Seeking Asylum May Be Dangerous to Your Health, Your Children's Health, and Even Your Unborn Baby's Health

    The asylum process was designed for speed. The regulations require that, absent "exceptional circumstances," USCIS should adjudicate an affirmative asylum petition within 180 days. See INA § 208(d)(5)(A)(iii). That time frame went out the window with the “surge,” if not before, and these days, cases typically take a few years (and cases referred to Immigration Court can take even longer).


    "I have to drink to forget."

    The effect of these delays on asylum applicants is about what you’d expect. I often hear from clients who are suffering from depression, anxiety, and other stress-related illnesses. Some have diagnosable conditions, and we regularly obtain letters from physicians to help us expedite cases. The situation is particularly dire for applicants separated from spouses and children, but few people seem immune to the stress caused by not knowing whether you (or your loved one) will be returned to a place where you fear harm.

    Several recent studies have helped shed light on how the immigration process impacts people’s health, including the health of their children and even their unborn children.

    One study stems from a well-known immigration raid in Postville, Iowa in 2008. Almost 400 undocumented workers—mostly Guatemalan—were arrested and charged with crimes such as identity theft and document fraud. Most were deported. Researchers at the University of Michigan at Ann Arbor examined the birth certificates of 52,000 children born before and after the raid. They found that “Latina mothers across the state were 24% more likely to give birth to undersized babies in the year after the raid than in the year before.” “The weight of non-Latino white babies stayed constant, suggesting that Latino populations were uniquely stressed by the incident.”

    “Low birth weight is associated with developmental delays, behavioral problems and an increased risk of chronic disease,” among other problems.

    Another study, currently in progress, will examine millions of birth certificates nationwide to “learn whether similar birth-weight patterns emerge when individual states enact laws targeting undocumented immigrants.”

    A third study suggests that immigration raids can have deleterious effects on adults, as well. In November 2013, in the midst of an on-going health study of Latinos in Washtenaw County, Michigan, ICE conducted a high profile military-style raid on the local community. “The 151 people who answered the survey after the raids reported worse general health than the 325 who had already completed it…. Many said that after the raids, they were too afraid to leave their homes for food or medical care, and displayed symptoms of post-traumatic stress disorder.”

    After President Trump signed the first executive order, the American Academy of Pediatrics warned that, “Prolonged exposure to serious stress — known as toxic stress — can harm the developing brain and negatively impact short- and long-term health…. The message these [immigrant] children received today from the highest levels of our federal government exacerbates that fear and anxiety.”

    These reports focus on undocumented aliens who fear removal and their children, but my guess is that the results would be similar for asylum seekers, who also face uncertainty, especially in light of the Trump Administration’s rhetoric and stepped-up enforcement efforts. The reports also reflect what I am hearing from my clients.

    So what can be done to help alleviate stress related to asylum delays?

    First, you can try to take some affirmative action. Ask to expedite and/or short-list your case. File a motion to advance. I have written about these options here (for the Asylum Office) and here (for the Immigration Court). Whether such efforts will ultimately make the case any faster is somewhat unpredictable, but taking action may be better than waiting helplessly.

    Second—and I often tell this to my clients, most of whom have strong cases—try to live like you will win your case. Learn English, go to school, get a job, buy a house, etc. You really can’t put your life entirely on hold for years waiting for a decision in your asylum case. You have to live. Obviously, this is easier said than done, and I myself would have a very hard time following such advice, but those who can put the case out of their minds and go on with life will be better off than those who dwell on it.

    Third, stay engaged. There are support groups for refugees, asylum seekers, and victims of persecution. There are also churches, mosques, and other institutions that can help. Being able to discuss problems, share information, and talk (or complain) to people who understand your situation is useful, and maybe cathartic. For a list of non-profits that might be able to refer you to a support group near you, click here.

    Although cases do seem to be moving a bit faster lately, it seems unlikely that the long delays and uncertainty faced by asylum seekers will go away anytime soon. During the wait, it is important to take care of yourself and your family, and that includes taking care—as well as you can—of your mental health.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. The "New" Travel Ban and How It Affects Asylees and Refugees

    Late last month, the U.S. Supreme Court issued a decision allowing the Trump Administration to begin enforcing its travel ban against all refugees and against individuals from six "banned" countries--Iran, Libya, Somalia, Sudan, Syria, and Yemen.

    Travel Ban Redux, or Once More Into the Breach (of Decorum), Dear Friends

    Since the Court's decision is (to put it kindly) a little vague, it was initially unclear how exactly the Administration would enforce its executive order ("EO"). Now, the Department of Homeland Security and the State Department have issued some guidance, and so we have a better idea about the effects of the EO. Of course, given that the Supreme Court's decision is subject to interpretation, we can expect more litigation in the weeks and months ahead, but for today, I want to discuss how the EO will likely be enforced with regards to asylum seekers, asylees, and refugees.

    Asylum Seekers
    : Asylum seekers are people who are physically present in the United States and who have a pending asylum case. The short answer for asylum seekers from banned countries is that the EO has essentially no effect on your case (the longer answer is here). Cases will move forward and be adjudicated as before (i.e., slowly). I should note that since the beginning of the Trump Administration, we have had several cases approved, including cases from Muslim countries and banned countries.

    Asylees and Refugees Who Have Already Been Resettled in the United States
    : Asylees are people who have been granted asylum by the U.S. government. Refugees in this section refers to people approved for refugee status overseas who have already been resettled in the United States. According to a DHS FAQ sheet (question # 11):

    Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excluded from this Executive Order. As such, they may continue to travel abroad and return to the United States consistent with existing requirements.

    This means that if you already received asylum, or if you were already resettled in the U.S. as a refugee, you can travel outside the U.S. and return, and the EO does not affect you. However, if you are from one of the "banned" countries, it is a good idea to keep an eye on the news to make sure there are no future changes that might affect your ability to return (one helpful website is the American Immigration Council).

    Also, according to DHS (question # 22), people who received a green card based on asylee or refugee status are not affected by the EO.

    Asylees and refugees can file for their family members (spouses and minor, unmarried children) to come to the United States, and the EO does not block those family members from coming here. According to DHS (question # 34), "Family members planning to join refugees or asylees are only approved for travel if a bona fide relationship to a spouse or parent in the United States exists. Therefore, if the relationship were confirmed, the travel suspension would not apply." (see also question # 36). So asylees who have filed I-730 petitions should not be prevented from reuniting with their family members in the U.S.

    Refugees Who Are Waiting to Come to the U.S. for the First Time
    : It is important to note that all refugees, even people from countries that are not banned, are affected by the EO. According to DHS (question # 31), "Under the Executive Order as limited by the Supreme Court’s decision, any refugee, regardless of nationality, is prevented from admission to the United States unless he or she (1) demonstrates a bona fide relationship with a person or entity in the United States or (2) obtains a national interest waiver from the Department of State or CBP [Customs and Border Protection]."

    The EO blocks admission of all refugees (other than those who meet an exception to the rule) for 120 days. According to the U.S. State Department, there are exceptions for "those refugees who are in transit and booked for travel," though these people will likely all be in the U.S. by now.

    According to DHS (question # 29), refugees can still come to the U.S. if they have a "close" family relationship with someone already here. DHS interprets this to mean:

    [A] parent (including parent-in-law), spouse, child, adult son or daughter, fiancé(e), son-in-law, daughter-in-law, and sibling, whether whole or half. This includes step relationships. However, “close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law and any other “extended” family members.

    Certainly we can expect this interpretation to be the subject of litigation. Why is a half-sibling a close relative, but a grandparent is not?
    Also, a refugee with a bona fide relationship to an "entity" in the United States is still eligible to travel here, but what this means is also unclear. According to a senior official at the State Department:

    As regards relationships with entities in the United States, these need to be formal, documented, and formed in the ordinary course of events rather than to evade the executive order itself. Importantly, I want to add that the fact that a resettlement agency in the United States has provided a formal assurance for refugees seeking admission is not sufficient, in and of itself, to establish a bona fide relationship under the ruling. We’re going to provide additional information to the field on this.

    I expect we will see litigation on this point as well. Litigation means delay, and so the likely effect of the EO on refugees will be to greatly reduce the number of people coming to the United States.

    Blocking refugees from resettling in the U.S. has been a goal of the Trump Administration since the beginning, and it is one reason why Mr. Trump was elected in the first place. So, like it or not (and obviously, I don't), this is what democracy looks like. But of course the result is that innocent people will die, and it is all the more reason for those of us who support our refugee program to try to convince the general public on this point, to work with our representatives in Congress, and to litigate in court.

    The EO's impact on nationals of the six banned countries and on all refugees is temporary, at least for now. The Supreme Court will take up the merits of the EO this fall, and the President may issue new EOs (and Congress may pass laws that impact immigration). In essence, all this is a moving target, and so asylees, asylum seekers, and refugees need to keep abreast of any changes. We also have to keep working hard, in order to protect victims of persecution and to defend our nation's values, which these days seem in grave jeopardy.

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