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Jason Dzubow on Political Asylum

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  1. The Attorney General's Not-as-Bad-as-We-Feared Decision on Asylum

    We knew this was coming. On March 7, 2018, Attorney General Jeff Sessions announced plans to revisit a Board of Immigration Appeals ("BIA") case called Matter of A-B-, 27 I&N Dec. 227 (BIA 2018), which granted asylum to a victim of domestic violence from El Salvador. Now, the Attorney General has reversed A-B- and issued a wide-ranging opinion that seeks to limit asylum for victims of domestic violence and other criminal activity.


    Attorney General Jeff Sessions explains why asylum seekers are bad.


    There is a lot to say about the AG's decision, but here I want to focus on two issues: (1) Who is affected by the decision, and (2) Why the decision may not have the broad impact that the AG seems to have intended.

    Matter of A-B- most immediately impacts victims of domestic violence. Since 1999, the law related to asylum for DV victims has been evolving. Different lawyers and government agencies have worked to crack open the door for such applicants. The end result of their efforts was Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which created a convoluted path for victims of DV to obtain asylum. I think it was fairly apparent that A-R-C-G- was a house of cards, waiting for a hostile Administration to knock it down. And in Matter of A-B-, Mr. Sessions has done just that--he has overturned nearly two decades of evolving precedent, and overruled A-R-C-G-.

    How, exactly, Mr. Sessions has attempted to block DV asylum seekers is important. To win asylum, an applicant must not only show that she faces harm; she must demonstrate that the harm she faces is on account of a protected ground, such as race, religion, nationality, political opinion or particular social group ("PSG"). So if a persecutor wants to kill you in order to steal your money, that is usually not a basis for asylum. But if the persecutor wants to harm you because he does not like your political opinion, or race, or religion, or PSG, that can form the basis for an asylum claim. A-R-C-G- said that “married women in Guatemala who are unable to leave their relationship” can constitute a PSG, making such people potentially eligible for asylum (assuming they met a host of other requirements).

    In A-B-, the Attorney General is saying that this PSG formulation was erroneous, and so victims of DV can no longer use it as a basis for asylum. Such victims can still attempt to win asylum based on other protected grounds (maybe they are a member of an acceptable PSG, for example, or maybe the persecutor seeks to harm them due to their religion or for some other "protected" reason). But the fact is, many of these (mostly) women will no longer qualify for asylum, and will be sent home to face whatever "vile abuse" (Jeff Sessions's words) that is awaiting them.

    The impact of A-B- is clearly meant to reach beyond the realm of DV asylum, but how it will be interpreted outside the immediate circumstances of the case is unclear (at least to me). For example, in the decision, Mr. Sessions writes, "Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum." Indeed, the decision makes multiple references to "gang violence," but as far as I can tell, gang violence is not an issue in the case. This is strange, since normally, courts decide issues that are before them; not abstract issues that are obliquely related to the subject of the case.

    So if they are presented with an asylum claim involving "gang violence," how will Immigration Judges and Asylum Officers apply Matter of A-B-? It's difficult to know. The AG's vague pronouncements about "gang violence" are not easily translated into legal guidance for adjudicators. Of course, adjudicators who want to deny a case can find additional support for such a decision here, but those who want to grant a case are not blocked from doing so.

    There's also the more general issue of "persecution based on violent conduct of a private [as opposed to government] actor," which could include harm against LGBT individuals, FGM, threats from terrorists groups, etc. The AG states that in such cases, an asylum applicant "must show more than difficulty controlling private behavior... The applicant must show that the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims." In other words, says the AG, "Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it." Maybe I'm missing something here, but this is the exact same legal standard we've had since the asylum statute was enacted. As I read Matter of A-B-, I don't expect big changes for people seeking asylum based on sexual orientation or FGM, or those fleeing terrorists, even though these cases typically involve persecution by non-state actors.

    In fact, though Matter of A-B- will block many DV victims from obtaining asylum, I am not sure that its effects will be broadly felt. Much of the decision is hyperbole without substance: "Generally," asylum claims based on persecution by non-state actors will fail. Generalizations like this aren't guidance for adjudicators; they are propaganda. And then there are helpful chestnuts like this:

    Neither immigration judges nor the Board may avoid the rigorous analysis required in determining asylum claims, especially where victims of private violence claim persecution based on membership in a particular social group.... Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.

    In other words, adjudicators are supposed to follow the law. No duh.

    I don't know why the AG used Matter of A-B- to make a broad statement against people fleeing violence from non-state actors (as opposed to limiting his ruling to the facts of the case). But the decision's platitudes and generalizations are not conducive to the type of legal precedent that can guide decision makers.

    Perhaps Mr. Sessions hopes that his anti-asylum rhetoric and exhortations to "follow the law" will set the tone for adjudicators at the Immigration Courts and Asylum Offices. Maybe he believes that his disdain for immigrants can somehow be transmitted through the bureaucracy to the men and women deciding cases. But in my experience, IJs and Asylum Officers are not lemmings who exist to do the AG's bidding. They are adjudicators empowered to interpret the law.

    After Matter of A-B-, some applicants will have a tougher time obtaining asylum; others will be unaffected. In a strange sense, this decision gives me hope. If this is the best Mr. Sessions can do, it is not enough to end asylum as we know it. Thanks to Mr. Sessions, many domestic violence victims will be returned to face harm, but our country will continue to offer protection to many others. For that, I am thankful.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, bia, sessions Add / Edit Tags
  2. Attorney as Counselor; Attorney as Cheerleader

    It's not easy to be an asylum seeker these days. Between the government's efforts--often disingenuous--to undermine asylum claims, the long delays, and the unnecessary bureaucratic obstacles, the process has become more stressful and more unfair than at any time in recent memory.


    Some people just weren't meant to be cheerleaders.


    It's also become more difficult for attorneys who represent asylum seekers. Given the government's unpredictability, we can’t easily advise our clients or evaluate their cases. It's also harder to help them understand the process and to predict how long they will wait for an interview or a decision. In other words, it's more difficult to serve as a counselor for our clients.

    It's also more difficult to offer our clients encouragement and hope. The long delays and hostile environment have made the asylum process (and the immigration process in general) more stressful. Clients need a sense of hope, and they need to feel someone is on their side. Hence, attorney as cheerleader.

    Fulfilling both jobs—counselor and cheerleader—is not easy, and at times, the two roles can be contradictory. So how can we as lawyers provide honest counsel and still offer our clients hope?

    First, I have found that even clients in the most dire circumstances appreciate hearing the unvarnished truth about their cases. Especially in the beginning, when it is time to evaluate the case and present the client her options, it is important not to sugarcoat the odds of success or gloss over potential obstacles. I sometimes have a tendency towards pessimism when I evaluate a case, as I don’t want to give the client unrealistic expectations. I also want the client to know what she is up against, so she can make her own decisions about how to proceed.

    Also, of course, it is very important for the client to understand the problems in the case. Is there a one-year bar issue? Or other bars to asylum? Are there potential credibility problems? Is there important evidence that will be difficult to obtain? All this we need to know, so that the client and the lawyer together can prepare the strongest possible case.

    The client needs to understand the process of seeking asylum, in all its dysfunctional glory. He needs to know how long a case might take, and whether it will likely be referred to court. He also needs to know about the limits of what we lawyers know. The fact is, the system is a mess. Even people working within the system often cannot predict how long a case will take, and lawyers like me certainly don’t know. We have to convey this uncertainty to the client, so he can understand the range of possible events. With the most accurate (albeit limited) information available, the client can make the best possible decisions for himself and his family.

    In short, it is very important that the client understand his situation as clearly as possible, so he can prepare his case, make informed decisions, and have some sense of his prospects for success. But once the client understands the case and decides to go forward, he needs support and hope. He needs to feel that success is possible, and that he won’t be stuck forever in limbo. This is where the cheerleading comes in.

    The process of seeking asylum is long (despite—or maybe because of—LIFO). It’s also grueling. Many clients want to forget about the bad things that happened to them back home. But for those mired in asylum-land, they cannot put traumatic events behind them. Also, many asylum seekers are separated from their families, which is particularly difficult and stressful for those with young children. There’s also the overall uncertainty of not knowing whether you can stay in the U.S. or you will have to leave. Should you buy a house? Build a life? What if your case is denied and you lose it all? Any human being living through such uncertainty will feel stress, but it’s even worse for asylum seekers, many of whom have suffered trauma, and whose family members may still be in danger. People in this situation need hope.

    There is a school of thought—which was already outdated when I was in law school—that the client’s emotional needs are not the attorney’s problem. If the client needs a shoulder to cry on, he should find a friend. Or a therapist. It doesn’t help that we lawyers don’t receive much training in counseling, and that we’re usually super busy and don’t have time to sit and listen to the client’s troubles. There's also the issue of attorney burn-out. Getting too emotionally involved in a case can lead to more stress and less objectivity, which is not good for the lawyer, or, ultimately, for the client. Despite all this, lawyers can offer clients hope and positivity in order to help them get through the difficult process of asylum.


    How to do this? One way is to focus on aspects of the case that are within the client's control: Obtaining evidence and witnesses, preparing the affidavit, applying for the work permit, trying to expedite or short-list the case. Much of the asylum process cannot be influenced by the client (or the lawyer), and so taking steps that are within the client's power at least gives her a sense of agency.


    We can also encourage clients to live their lives as normally as possible: Get a job, go to school, get married, have children. To the extent possible, it is better to build a life, instead of allowing the uncertainty of an asylum case to rule your day-to-day existence.


    Finally, we can try to emphasize the positive aspects of the case. Once the client is going forward with the case and understands the challenges, there is no point in focusing on the negative. If it's very unlikely that your client can overcome the one-year bar, for example, do everything possible to help the client demonstrate an exception to the bar, but once that is done, offer the client some encouragement: Some Immigration Judges or Asylum Officers will interpret the bar more liberally, maybe the client will get lucky, etc.


    These are difficult times for asylum seekers in the U.S. As attorneys, we have to continually push ourselves to be more compassionate and more patient. I know personally how difficult that can be, but if we want to best serve our clients and stand up to the forces against them, that is what we must do.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, lawyer Add / Edit Tags
  3. The Trump Administration and the Rhetoric of Genocide

    If you go to the White House's official website, you will see this article: "What You Need To Know About The Violent Animals Of MS-13." The article claims that the "violent animals of MS-13 have committed heinous, violent attacks in communities across America." Indeed, the two-page article uses the term "animal" in reference to MS-13 gang members a total of 10 times. What to make of this?


    The path of dehumanization always ends at the same place.


    On the one hand, there is no doubt that MS-13 is a violent, criminal gang, that causes great misery in many communities, especially in Central America, but also in the U.S. I've met and represented many individuals who were victims of this gang. My clients have been attacked by machetes, shot, raped, threatened, and had family members murdered. For victims of MS-13, no language can adequately express their disgust and anger towards the gang.

    But here, we are not talking about victims. We are also not talking about over-heated pundits on cable news. We are talking about the United States government. And when the United States government, and our President, refers to people--even criminals--as "animals" that is not simply hyperbole. It is a dangerous step towards fascism and genocide. And I do not mean this in any metaphorical or rhetorical way. Dehumanizing people--even bad people--has historically been a first step towards mass murder.

    President Trump's characterization of MS-13 gang members as "animals" reminds me of the Rwandan government's rhetoric prior to the 1994 genocide. Tutsis were referred to as "cockroaches." At the time, Rwanda was involved in a civil war, which pitted the Hutu-majority government against the Tutsi-majority rebels. The Rwandan government had reasons to speak ill of Tutsi rebels, and certainly those rebels were no angels. However, the demonization and dehumanization of the enemy went well beyond the rebel soldiers--it extended to all Tutsis.

    In the same vein, perhaps the strong language against MS-13 can be justified. After all, many gang members have committed vicious crimes. But just as rhetoric against Tutsi rebels ultimately harmed innocent Tutsi civilians, the impact of the President's words will stretch well beyond members of the MS-13 gang. Here's more from the White House website--

    Recent investigations have revealed MS-13 gang leaders based in El Salvador have been sending representatives into the United States illegally to connect the leaders with local gang members. These foreign-based gang leaders direct local members to become even more violent in an effort to control more territory

    So does this mean that all people from El Salvador are suspect? Are they all "animals"? And when we are selecting people for dehumanization, how do we know where to stop? How do we know who is actually a member of the gang? What about people forced into the gang who are trying to escape, or people who simply look like gang members (whatever that means), or former gang members? Where is the due process in the dehumanization?

    And if you think that mere words are not dangerous, or they can be dismissed as "Trump being Trump," let's remember how the Nazis engineered the mass killing of millions of Jews and other "undesirables" during World War II. From the U.S. Holocaust Memorial Museum--

    Exploiting pre-existing images and stereotypes, Nazi propagandists portrayed Jews as an “alien race” that fed off the host nation, poisoned its culture, seized its economy, and enslaved its workers and farmers. This hateful depiction, although neither new nor unique to the Nazi Party, became a state-supported image

    The Nazis portrayed the Jews as a threat to the Fatherland. Jews were not people; they were aliens. There was even "evidence" for the threat: Some Jews were wealthy; others were Marxist. These vile stereotypes existed long before the Nazis, but when they were adopted by the German government, they led to genocide.

    In our own time, many commentators and activists have been dehumanizing non-citizens. These modern-day blood libels have always been disgusting and disgraceful. But when the President and the U.S. government get into the act, it raises the danger to a whole new level. And we are seeing that play out now, most recently in the government's decision to rip apart parents and children who arrive at the border seeking asylum (in many case from--ironically--MS-13). Could we tear families apart and separate children from their parents if we viewed these people as human beings? This is dehumanization in action, and the harm it will cause is very real.

    Let's not mince words about what is happening here. The White House, the President of the United States, and the U.S. government are referring to human beings as "animals." And when governments negate the humanity of people--even people deemed undesirable--it puts us on a path where the only destination is death. All of us have a responsibility to bring back humanity and decency to our country. Let us resolve to do what we can before it is too late.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. What Happens When Asylum Is Granted?

    With all the bad news related to refugees and asylum seekers, I thought it might be nice to discuss something positive: What happens when an asylum case is granted?


    One of my clients celebrates her asylum grant.


    The fact is, despite the best efforts of the Trump Administration, people are still winning their cases. They are winning affirmatively at the Asylum Offices, and defensively in the Immigration Courts. There are some differences between an affirmative and a defensive grant, and we’ll talk about those first.

    If an applicant wins at the Asylum Office, she receives a letter indicting that asylum was granted. The date on the letter and the date of the asylum grant are usually not the same. To find the date that asylum was granted, look in the body of the letter on the first page. It will indicate that “asylum was granted on” a certain date. This is the date that matters for purposes of applying for a green card and obtaining certain government benefits.

    If asylum is granted in Court, the Immigration Judge will issue an order stating that asylum is granted. If the DHS attorney appeals, the case is not over, and will have to be adjudicated by the Board of Immigration Appeals. But if DHS does not appeal (or if the BIA has already indicated that asylum must be granted), then the case is over and the applicant has asylum. There is one more step that the applicant must take in order to complete the process. The person must bring his approval order and photo ID to USCIS, which will issue an I-94 indicating that the person has asylum, and will also create a new Employment Authorization Document ("EAD"). You can learn about that process here (check the link called post-order instructions).

    As soon as asylum is granted, you are eligible to work in the United States, even if you do not have an EAD (see Working in the United States). You can also get an unrestricted Social Security number by contacting the Social Security office.

    A person who wins asylum can file an I-730 petition for her spouse and children. To qualify for an I-730, the marriage must have existed prior to the date that asylum was granted. For a child to benefit from an I-730, the child must have been under 21 and unmarried at the time the asylum application was filed. If the child turned 21 before the asylum case was granted, he is still eligible to benefit from the I-730. However, if the child married after the case was filed, he is not eligible to bring his own spouse and children to the U.S. through the I-730 process.

    One year after asylum is granted, the alien may file for her lawful permanent residency ("LPR") (her green card) using form I-485. We used to advise people that they could file for the green card 30 days prior to their one-year asylum anniversary, and this used to work. But then we filed a green card application early, and USCIS rejected it. Since then, we have advised our clients to wait one full year before filing for their residency. Principal asylum applicants do not generally receive a green card interview, but dependents usually do. When you receive the LPR card, it will be back-dated by one year (so if you get the card on May 21, 2018, it will indicate that you have been an LPR since May 21, 2017). You can apply for U.S. citizenship based on the earlier date listed on the card.

    A person who wins asylum can obtain a Refugee Travel Document using form I-131. This document is valid for one year and is used in lieu of a passport, but there are some limitations. For example, returning to the country of feared persecution can result in termination of asylum status or lawful permanent residency (I wrote about this here). Also, not every country will accept the RTD as a travel document, so you have to check with the country's embassy in advance.

    People granted asylum may also be eligible for certain government benefits, including referrals for short-term cash and medical assistance, job development, trauma counseling, and English as a Foreign Language services. The Office of Refugee Resettlement has a state-by-state collection of agencies that can help with these and other services (once you identify agencies near you, you have to contact them directly). For those granted asylum affirmatively, the Asylum Office sometimes holds meetings to explain the benefits available to asylum seekers. You would have to ask your local Asylum Office about that. Be aware that after the case is granted, you have a very limited time to access most services, and so the sooner you reach out to provider organizations, the better.

    Asylees are eligible to attend university (asylum applicants who have an EAD are also eligible to attend most universities). In many cases, universities offer in-state tuition to people with asylum. There may also be scholarships available. You would have to reach out directly to the university to learn more about tuition discounts and scholarship money.

    Asylees also have certain legal obligations. If you are a male asylee (or a dependent) between the ages of 18 and 26, you must register for Selective Service. LPRs and citizens are also required to register. Also, like everyone else, asylees have to pay taxes and follow the law.

    Finally, asylees and LPRs must inform USCIS whenever they move to a new address. You are required to do this within 10 days of the move. You can notify USCIS of your new address by mailing them form AR-11 or filing it electronically. Either way, keep evidence that you filed the change of address form.

    Especially these days, I view every asylum win not only as a victory for the individual, but also as a victory for our country. Whether our leadership understands it or not, our nation is defined in large part by how we treat those coming to us for refuge. So if you have been granted asylum in the U.S., thank you for still believing in the American Dream--it helps the rest of us keep believing as well. And of course, Welcome to the USA!

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, granted Add / Edit Tags
  5. Asylum Interview Tips for Attorneys from a Former Asylum Officer

    Before founding Stilwell & Slatton, Victoria Slatton worked as an Asylum Officer at the Department of Homeland Security. As a former employee of USCIS, she has an in-depth understanding of the United States immigration system and is a passionate advocate for her clients in private practice. Her full bio can be found here.

    Contact Victoria Slatton at victoria.slatton@ssimmigrationfirm.com. To schedule a consultation with an immigration attorney at Stilwell & Slatton, visit our website.


    Victoria Slatton

    It’s been a year since I left my former position as an asylum officer and switched to private practice. As a former officer, sometimes it's hard for me to balance my inherent urge to zealously advocate for my client during an asylum interview with my knowledge of how my actions will be perceived by an asylum officer. To address these concerns, I’ve compiled a very basic list of information I think will be helpful for attorneys during an asylum interview.

    1. Go Over the I-589 With Your Client Before the Interview

    Every officer has her own way of handling I-589 updates, but I personally preferred it when attorneys had changes to the I-589 already written out and ready for me to go over. You don’t have to redo the entire document. Instead, simply type up the changes in an organized Word document and respectfully ask whether the officer would like a written update to help subsidize their I-589 review. Some might say no, but others will be very grateful.

    This was helpful to me for two reasons. First, it showed me that the applicant wanted to be upfront about the mistakes in his claim and had every intention of being forthcoming. Second, it saved me time, in that I did not have to ask repeatedly how to spell names of family members, addresses, or seek clarification from applicants over specific dates that might be confusing. Especially if your client has an interpreter, written updates could easily save an officer a precious 20 or 30 minutes in an interview. I was always grateful when attorneys took every step to respect my time.

    2. The Interview is About Your Client

    It is very frustrating to sit back and watch your client struggle to answer a question he doesn’t understand, especially when you know he has a perfectly reasonable explanation and simply cannot communicate his response due to nerves or a language barrier. However, interjecting yourself into your client’s testimony to clear up a discrepancy is generally not going to do your client any favors.

    Officers almost never factor in attorney interjections when making a decision, and sometimes it can prevent your client from saying what the officer needs to get on record. When I handed my supervisor my interview notes, I wanted it to be clear that the applicant was forthcoming in his responses and understood my questions, not the attorney. Unless a conversation is truly going off the rails and you feel it is necessary to recenter the discussion for the sake of your client, I would highly suggest saving these remarks for your closing argument.

    3. Have a Copy of Your Client’s Evidence in Front of You

    One of the few times you should interject in an interview is if the officer asked for evidence that has already been submitted. Officers don’t always have time to review the file in depth before an interview, and might not truly understand the nature of everything that has been submitted. Therefore, if your client is asked a question about why a certain piece of evidence wasn’t brought forth, it is very helpful and appropriate to respectfully direct the officer to the exhibit in question.

    4. Make Your Closing Argument Short and Concise

    Generally speaking, for an asylum officer, the closing statement will probably be the least important piece of information in the record. Officers understand the nature of zealous advocacy and know that you will already have an inherent bias to protect your client. Now that I’m in private practice, I try to keep my closing argument to under three minutes and maintain a level of respect for my officer, even if the interview has been particularly frustrating.

    I usually use this time to address inconsistencies in my client’s testimony and to explain how I think the client either misunderstood the question or point to pieces of evidence that might help the officer paint a clear picture of what happened. For example, I recently had a client who stumbled over his timeline and incorrectly quoted a few dates. The officer questioned these discrepancies and I kindly explained at the end of the interview that my client used a different calendar in his home country and often became confused when recalling the specifics of his timeline.

    Lastly, I will make a short statement about why my client meets the definition of a refugee. I try to keep this to a thirty second monologue. Closing statements are an art, not a science, and I tend to focus on different legal aspects depending on the case. It is important to remember that not every legal aspect of the case needs to be defended at this point in the interview.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum Add / Edit Tags
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