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Jason Dzubow on Political Asylum

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  1. Refugees and the Power of Stories

    I've written here many times about the difficulties faced by asylum seekers in the United States. But the fact is, asylum seekers and refugees are not powerless. They need not sit passively while politicians and pundits impugn them as "rapists" and "terrorists," and pretend that America's problems are caused by "the other." In fact, asylum seekers have a powerful tool at their disposal to fight back against such accusations: They have their stories.

    Talk to any asylum seeker or refugee, and you will hear a great story. It is often a tragic and depressing story, to be sure, but it is always a story about overcoming adversity, about survival, about perseverance. It is, more than anything, an American story. My ancestors fled pogroms in Russia or conscription in the Czar's army. My wife's grandfather escaped from a Nazi concentration camp in Austria. Many American families have stories like these.

    The clients I talk to every day also have amazing stories: Eritreans who escaped national service (i.e., slavery) by outrunning military guards and then traveling through dozens of countries to reach the United States; Afghans who served shoulder to shoulder with American soldiers and who were then threatened by the Taliban; transgender women from El Salvador who face persecution from their families; journalists from Pakistan who were threatened by the ISI; a gay man from Rwanda who was subject to a bizarre and harmful exorcism ritual; a Chinese whistle-blower who exposed billions of dollars of corruption and then faced threats from powerful businessmen; democratic activists from Egypt imprisoned after the Tahrir Square crackdown; religious converts from Iran who face death for their apostasy. The list goes on and on.

    Indeed, people don’t come to America because they’re doing great in their homeland. They come here because they want a better life, and the stories about why they left and how they came here are often riveting.

    Here’s my theory: Even people who generally oppose immigration will support the immigrants that they know personally or who they feel a connection to. For example, the only legislative amendment to the legal definition of “refugee” came when pro-life advocates lobbied Congress to make asylum available to victims of forced family planning. Pro-lifers are not necessarily associated with liberal immigration policies, but through this legislation, they greatly expanded the number of people eligible for asylum. On a more interpersonal level, I have a friend who worked for Pat Buchanan, the anti-immigrant firebrand who once challenged President George H.W. Bush for the Republican nomination. My friend’s fishing buddy—an immigrant from West Africa—was arrested for assault and battery against a police officer. My friend referred the case to me, and when we ultimately won, my friend sent me a note: “You did the most important thing a person can do, you made me look good for recommending you.” I love that. The point, of course, is that even a Pat Buchanan supporter was sympathetic to the immigrant he knew personally.

    Why should this be the case? Why should people who normally oppose—and even hate—immigrants still support the immigrants they know?

    I think the simple truth is that immigrants are no different than anyone else. And for most people, when they hear stories of struggle and survival, and of love and gratitude for America, it’s difficult not to be sympathetic. In other words, if immigrants and their supporters can get people to listen to immigrant’s stories and to meet immigrants in-person, we win.

    The difficulty lies in making the connection, and in getting people to listen. How can we do that?

    First, I think we need to connect in-person, not through traditional or social media. The problem with the media is that it has become so Balkanized as to be largely useless for bridging ideological divides. In addition, media "interactions" are generally too superficial to change minds. Personal connections are harder to achieve, but they are far more powerful, convincing, and long-lasting.

    Second, we need to invite people in and make them comfortable. We should not put them on the defensive. This means engaging them on their turf, not ours. It means listening to people with different points of view, and not judging them. Most people who oppose immigrants and refugees are not bigots and xenophobes. They are not irrational. But in many cases, they do not have all the facts. They do not personally know refugees, and have not heard their stories. We may not be able to change their minds, but at least we can provide them with more information, and give them a more complete picture (a picture, by the way, which is sorely lacking in our partisan media environment).

    Finally, we need to accept that some people will not be persuaded, no matter how compelling the story, or how many statistics we cite. We need to respect that decision, and this often requires self-control. It also requires recognizing that it’s not easy for a person to change her views. Sometimes, all you can do is tell your story and accept that there is no perceptible change. Perhaps, though, we can hope that a positive interaction will at least plant a seed in the person’s mind, and maybe that is enough.

    So how does this work in practice? If you are a regular reader of this blog, you know that my three favorite words are, I don't know (in fact, I don't even know if "I don't know" counts as three words or four!). But here's how I would imagine implementing this idea:

    Refugees and asylum seekers (and their supporters) would reach out to a church, school or community association, and ask to come tell their stories. The purpose would not be to debate refugee or immigration policy. Instead, it would be to tell a personal narrative and express gratitude for what American has offered. Hopefully, the audience would consist of people with little exposure to non-citizens. Or better yet, an audience that is skeptical of "illegals." Preferably, the speakers would be proficient in English (and presumably, if you've read this far, you are proficient in English). After the story, perhaps there could be a Q&A. And that's it. It does not have to be political. It does not have to specifically touch on policy. It would just be individuals connecting, telling stories, and listening.

    So maybe if you are an asylum seeker or refugee, and you've read this far, you would consider reaching out to your neighbors and telling your story. Or if you are a member of a religious or civic group that might benefit from hearing refugee stories, you'd consider contacting a refugee organization for a speaker. In this way, one person at a time, we can change the world for the better.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, politics Add / Edit Tags
  2. Tips from a Former Asylum Officer

    Heidi Boas has dedicated her legal career to assisting asylum-seekers, refugees, and other immigrants through her work with the U.S. Government, United Nations, and non-profit organizations. Heidi served as a Senior Asylum Officer at the Arlington Asylum Office (2014-2017) and currently practices immigration law at Wilkes Legal, LLC in Takoma Park, MD. Heidi’s full biography can be found here.



    Heidi Boas

    Contact Heidi Boas at
    heidi@wilkeslegal.com. To schedule a consultation with an immigration attorney at Wilkes Legal, LLC, visit our website or call (301) 576-0491.

    Given the large backlog and heavy caseload at the asylum office, asylum officers are under significant pressure to complete cases as efficiently as possible. An asylum officer is allocated an average of four hours to complete each asylum case, which involves some steps that you and your attorney don’t see—including about an hour spent drafting the written decision, and about forty minutes working on security checks and other administrative tasks. When you add those steps to the two hours that an asylum officer spends conducting the average asylum interview, the officer may have only about twenty minutes to review your file before calling you in for the interview. When preparing your asylum case, therefore, it is helpful to keep the asylum officer’s time constraints in mind and avoid submitting extraneous information.

    Below are some tips from my perspective as a former asylum officer on how to prepare an effective and efficient asylum claim:


    The Personal Statement

    The personal statement is arguably the most important document in your asylum application, but it does not need to be very long. If the asylum officer only has twenty minutes to review your file, she probably will not have time to read your attorney’s lengthy legal brief, but she should always take time to read your personal statement. Given the time pressure that the officer is under, it is best to keep your personal statement concise and to the point. I recommend limiting it to a length of five pages or less. State up front why you are applying for asylum—What harm did you suffer in the past or do you fear in the future? Why were you harmed in the past, and/or why do you fear harm in the future? Avoid including extraneous information such as details about your family background, education, and employment history. Basic information about your background is included in the Form I-589 Application for Asylum, and additional detail is often irrelevant to your asylum claim. The main purpose of the personal statement is to focus on any harm that you suffered in the past and any harm you fear in the future. Leave general references to country conditions out of the personal statement and focus on telling your story. Finally, make sure that you fully understand the contents of your personal statement before signing it, and that the statement has been translated back to you word-for-word in your language.


    Supporting Documents

    Keeping in mind the asylum officer’s time constraints, you should avoid submitting extraneous or duplicative documents in support of your asylum claim. For example, it is usually not helpful to submit copies of your diplomas or school records, as these documents are usually irrelevant to your asylum claim. It is also unnecessary to submit hundreds of pages of country conditions documents. Asylum officers are already familiar with human rights conditions in many countries and keep their own country conditions excerpts on hand to use when writing decisions. If an asylum officer is not already familiar with the situation in your country, the officer will conduct research and find relevant information to include in his or her written decision. Asylum officers generally consult the Department of State’s Country Reports on Human Rights Practices, as these reports are considered an objective and reliable source of information. Since asylum officers have their own resources for finding country conditions information, you should be mindful of the number of pages you submit and highlight any excerpts of a report that you want the officer to focus on.


    Form I-589

    Take the time to carefully prepare the Form I-589 Application for Asylum, including details about where you have lived, your education, and your employment history. This can help save time when the asylum officer reviews the form with you during your interview. If you have several changes or corrections to make to Form I-589 at the interview, it is helpful to provide the officer with a list of your changes. The asylum officer is still required to note any corrections or changes by hand on the original Form I-589, but your list can help save the officer some time.

    Under “other names used,” list as aliases any alternate spellings (including misspellings) or alternate versions of your name that you have used. By listing these other names on Form I-589, you can help avoid delays during the security check process. After receiving the asylum application, the asylum office will automatically run security checks on any names listed on Form I-589. If the asylum officer learns during or after the interview that you have used another version or spelling of your name that was not initially listed on Form I-589, the officer must then initiate the security check process for that name, which could cause a delay in receiving your decision.


    The Legal Argument

    Asylum officers are required to undergo an extensive six-week training program in asylum law, and pass exams before adjudicating asylum cases. In addition, they continue receiving weekly training throughout their tenure at the asylum office. If confronted with a challenging or unfamiliar legal issue, asylum officers are encouraged to refer to the Asylum Officer Training Manual or consult a supervisor.

    In light of the training that asylum officers receive and the significant time constraints they face, it is not necessary to submit a lengthy legal brief in support of your asylum case. The asylum officer probably won’t have time to read the brief word-for-word and may not have time to read it at all. If you or your attorney are making a novel legal argument or referencing new case law and want to submit your argument in writing, try to keep your analysis as concise as possible. A succinct cover letter can suffice, for example, instead of a lengthy brief.


    Preparing for the Interview

    When preparing for the asylum interview, don’t avoid addressing the tough issues. A critical part of an asylum officer’s job is to assess your credibility, so you should discuss with your attorney any potential credibility issues that could arise and be prepared for questions about those issues at your interview. An asylum officer is required to confront you about any inconsistencies in your testimony or application, give you an opportunity to explain the inconsistency, and then assess the reasonableness of your response. Be prepared to respond calmly and provide an explanation for any inconsistencies, rather than reacting defensively to the officer’s question.


    After the Interview

    After the interview, if you strongly disagree with the asylum officer’s decision, consider filing a Motion to Reopen or Reconsider. No form or filing fee is required. The motion should be filed within 30 days, or later if you can show the delay was reasonable and beyond your control. It is best to submit the motion by letter to the asylum office as soon as possible after receiving your decision. If the asylum office receives your motion soon enough, it can decide to call you back in for a re-interview before serving a Notice to Appear ("NTA") on the court. Alternatively, if the NTA has already been served on the court, the asylum office can ask Immigration and Customers Enforcement to terminate the NTA and recall the case to the asylum office for another interview.

    If you have been waiting months or years since your interview to receive a decision from the asylum office, you might consider filing a writ of mandamus. A mandamus can help incentivize the asylum office to call you in for another interview and finally issue a decision. Even if the asylum office’s decision is not a positive one, you can move forward with presenting your case before the immigration judge and then pursuing any necessary appeals.

    Originally posted at www.Asylumist.com.

    Updated 03-28-2018 at 08:18 AM by JDzubow

    Tags: asylum Add / Edit Tags
  3. Attorney General Seeks to Limit Asylum... Or Something

    The Attorney General, Jefferson Beauregard Sessions, has been busy "certifying" cases to himself in order to (apparently) reduce protections for certain asylum seekers. I want to talk about two cases in particular, but first, let's talk about the process that Mr. Sessions is following.


    "Oh Magoo, you've done it again!"

    The decisions in question involve cases that were before the Board of Immigration Appeals ("BIA" or "Board"), the administrative appellate body that interprets the nation's immigration laws. The BIA has been called (sometimes derisively) the "Supreme Court of immigration law." The BIA is not actually a court in the normal sense of the word (and, by the way, neither are the Immigration Courts). Instead, it is an office within the U.S. Department of Justice. The leader of the Department of Justice is the Attorney General ("AG"). So in essence, the BIA derives its power from the AG, who is the ultimate "decider" when it comes to BIA cases.

    What has been happening recently is that Mr. Sessions has been "certifying" cases from the BIA to himself. Basically, this means that he is taking the cases from the BIA and changing the Board's decisions. In a sense, this is nothing new--previous AGs have done the same thing on occasion. But the concern here is two-fold: Substantively, the AG seems to be moving towards limiting the scope of asylum protections in some types of cases, and procedurally, the AG's actions do not comport with due process of law, at least as that concept is understood in non-totalitarian countries.

    The first case I want to discuss is Matter of E-F-H-L-, 27 I&N Dec. 226 (AG 2018). In that case, the AG vacated a 2014 BIA decision (also called Matter of E-F-H-L-) and returned the matter to the Immigration Judge (the letters in the case name refer to the alien's initials). The 2014 case stands for the proposition that an asylum applicant is entitled to a hearing on the merits of her application, including an opportunity to provide oral testimony and other evidence, "without first having to establish prima facie eligibility for the requested relief." In other words, the case is widely viewed as re-affirming the right to a hearing, even if the asylum claim, as articulated by the applicant, is legally insufficient.

    In civil litigation, there is something called "failure to state a claim." Judges routinely dismiss lawsuits if they determine that a litigant's claim--even if taken as true--does not entitled the litigant to relief. In our adversarial system, this makes sense. Why waste a court's time (or the jury's time) adjudicating the facts of a case if those facts do not entitle the claimant to any relief? And why not do the same thing for asylum applicants?

    The main objection is that many asylum applicants are unrepresented, and do not know how to articulate their claims effectively. Only in the course of testimony might an applicant's claim become apparent (and that is especially true in a case like E-F-H-L-, where there is a complicated "particular social group" analysis). Most Immigration Court hearings are fairly truncated affairs to begin with, and so further curtailing an applicant's ability to present his case makes it even more likely that overworked judges will take the easy route and dismiss an asylum claim before the applicant is able to fully develop his case. The result, of course, will be that legitimate asylum seekers are denied protection.

    So it is concerning that Mr. Sessions has vacated E-F-H-L-. But what comes next is not yet clear. The case has been returned to the Immigration Court for further decision-making, and as I read the case, it seems unlikely that the Judge or the BIA would need to rule on E-F-H-L-'s right to a full hearing. According to the AG's decision, E-F-H-L- married a U.S. citizen and withdrew his asylum claim. If that is true, there is little reason to think we will hear anything more about this particular case.

    The problem, though, is that the AG presumably vacated E-F-H-L- for a reason. I expect the reason is that he wants to create a new standard (in a different alien's case) for adjudicating asylum claims. What this standard will be, we do not yet know, but given Mr. Sessions's jaundiced view of asylum seekers, I'm not feeling optimistic. Whatever he does, Mr. Sessions is limited by the statute and by the courts, and so hopefully, it will not be as bad as we fear.

    The second case I want to discuss is Matter of A-B-, 27 I&N Dec. 227 (BIA 2018). Mr. Sessions has certified that BIA case to himself and requested new briefs (legal arguments) from the parties and from amici (interested organizations). The question Mr. Sessions wants briefed is this:

    Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

    We don't know, but presumably the goal here is to block asylum seekers who fear harm from "private criminal activity." This might, for example, block people fleeing harm from gangs in Central America, or victims of domestic violence. It potentially affects other types of asylum claims as well.

    The main problem is that Mr. Sessions has asked for briefing on a question that is vague. He has not given us the facts of the case, thus making it difficult to write an effective brief, since cases are fact specific. He even tried to hide the name of the attorney representing A-B-; perhaps in an effort to block advocates from learning more about the case.

    This is not how due process works, and I imagine that whatever decision the AG issues in A-B- will be vulnerable to review by the federal appellate courts, which tend to look askance at such blatant (and amateurish) violations of due process.

    That the Attorney General of the United States would engage in such obvious procedural misfeasance is very concerning. Since we don't know what the AG is really asking for, his request for amici briefs is completely disingenuous. Indeed, even if you favor limiting the scope of asylum, you should be concerned when our country's top law enforcement officer demonstrates such contempt for the rule of law.

    Where the AG is heading with all this, we shall see. The widespread belief among advocates is that in anticipation of DACA and TPS ending, Mr. Sessions is planning to roll back protections for certain asylum seekers, specifically people facing harm from gangs and also victims of domestic violence. But he could also be targeting LGBT asylum seekers who fear community (as opposed to government) persecution, victims of female genital mutilation, and victims of terrorist groups, among others.

    Finally, it’s difficult not to see the irony here. For years, advocates for asylum seekers have been litigating to expand protections for a wider range of persecuted individuals, particular women, who often face harm not contemplated by the people (mostly white men) who came up with the definition of “refugee” after World War II. However, by pursuing litigation—rather than legislation—we have left ourselves vulnerable to a restrictionist Administration that now seeks to contract that definition.

    Don’t get me wrong—I certainly don’t blame advocates for our current woes; we tried and failed legislatively at least once. But I do hope that if the pendulum swings back, and the public mood becomes more favorable, we will try again to create a refugee law that is more in-tune with the types of harm individuals face today. Until then, we are stuck litigating our clients’ cases in an uncertain environment, against an Attorney General who has little interest in playing by the rules.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, sessions Add / Edit Tags
  4. Your Affirmative Asylum Case Was Denied. Now What? (Part 2: Immigration Court and Beyond)

    This is part 2 of a posting about what happens if the Asylum Office denies your affirmative application. Read part 1 here.


    The view from the Judge's seat in Immigration Court.


    If the Asylum Office denies your asylum case and you are no longer “in status,” you will be referred to an Immigration Court. When you get the denial (which they politely call a Referral), it will contain a short letter with a (usually) boilerplate explanation about why the case was not granted. Along with the letter, you will receive a Notice to Appear (“NTA”), which explains why the U.S. government believes it can deport you. If you have dependent family members, each of them should also receive an NTA (assuming they are all out of status).

    The NTA contains allegations and charges. The allegations usually begin, “(1) You are not a citizen or national of the United States; (2) You are a citizen and national of [your country]; (3) You entered the United States on [date and place],” and then they state why you are removable. Often, the alien is removable because she remained in the United States longer than permitted. Other times, the alien entered the U.S. unlawfully (without inspection) or fraudulently (using a fake passport, for example). Some people are removable due to criminal convictions or other immigration violations. Read the NTA and make sure all of the allegations are correct.

    The NTA also contains one or more charges. The charges indicate the section of the law (the Immigration and Nationality Act or INA) that the government can use to deport you. One common charge is under INA § 237(a)(1)(B), where the person is removable for having “remained in the United States for a time longer then permitted.” Other charges could relate to an unlawful or fraudulent entry, or to a criminal conviction.

    Finally, the NTA will tell you where to go to Immigration Court. Usually, these days, the NTA does not tell you when to go to court. Instead, it says, “TBD,” which means “To Be Determined.” If your court date is TBD, you will receive a notice in the mail with the date of your first hearing. It is important to keep your address updated with the Immigration Court. Use form EOIR-33, and don’t forget to send an extra copy to the DHS Office of the Chief Counsel (the prosecutor).

    Also, you can call the Court phone system to check the status of your case and learn whether you have an upcoming hearing. The phone number is 800-898-7180. It is a computer; not a person. Once it answers, follow the instructions and enter your Alien number. After the computer spells your name and you confirm, you can push 1 for your next court date. I recommend you call once a week, just in case you don’t receive the written notice (if you miss your court date, the judge will likely order you deported).

    The wait time for the first court date depends on the court and the judge—it could take a few weeks or a few months (or sometimes longer).

    Once you are scheduled for court, you will be assigned a judge. The 800-number will tell you the name of your judge. You can learn more about your judge at TRAC Immigration (information is not available for newer judges).

    The first hearing is called a Master Calendar Hearing (“MCH”). Many people attend that hearing, and you have to wait your turn. When it is your turn, if you have a lawyer, the Immigration Judge (“IJ”) will take “pleadings.” This is when you (through your attorney) admit or deny the allegations and charges in the NTA. After that, the IJ will usually schedule you for an Individual Hearing (also called a Merits Hearing).

    If you do not have an attorney with you at the MCH, the IJ will usually give you a continuance to find an attorney. If that happens, you will be scheduled for another MCH. In generally, the IJs really want you to find a lawyer, as it makes their job easier and it significantly increases the likelihood that your case will be approved.

    For most referred asylum applicants, the NTA is correct and the person will admit the allegations, concede the charges of removability, and request asylum, Withholding of Removal, and relief under the United Nations Convention Against Torture. However, in some cases, the NTA is not correct. Also, some applicants can seek other relief, such as Cancellation of Removal or adjustment of status based on a familial relationship (or something else). One job of the attorney is to explore what types of relief you might be eligible for.

    Also, at the MCH, the IJ will ask you to designate a country of removal. In other words, the IJ wants to know where to send you if you lose your case. For most asylum applicants, we decline to designate a country of removal. The DHS attorney (the prosecutor) will usually designate the country of citizenship.

    If you admit the allegations, concede the charge(s), and indicate what relief you are seeking, the IJ will usually schedule you for an Individual Hearing, which is your trial. If you decline to accept the first Individual Hearing date the IJ offers you, or if you take a continuance to find a lawyer, it could prevent you from obtaining a work permit (if you don’t already have one—if you already have a work permit, you do not need to worry about this). If you think this could be a problem in your case, ask your lawyer. If you do not have a lawyer, ask the IJ.

    The wait time between the MCH and the Individual Hearing varies by court and by judge. It might be a few days or weeks (for a detained alien), or it could be several years. Supposedly, for asylum cases referred to Court under the new last-in, first-out system, IJs will be scheduling quick Individual Hearing dates. We’ll have to wait and see how that works out.

    The Individual Hearing is your trial. It is where you present evidence, and where you and your witnesses testify. At the end of the Individual Hearing, the IJ will usually make a decision—give you asylum, give you some other type of relief, or order you deported. Sometimes, a case requires more than one Individual Hearing. Other times, the IJ will send the decision by mail.

    If lose your Individual Hearing, you can appeal to the Board of Immigration Appeals (“BIA”). If you win your asylum case, DHS can appeal (thankfully, that is not so common). You do not appear in-person for the appeal. Instead, you (or hopefully, your lawyer) will submit a brief, and the BIA will read it and make a decision in your case. Either the BIA will dismiss the appeal, meaning the IJ’s decision was correct and will remain in force, or it can alter or reverse the IJ’s decision. In the latter instance, the case will normally be returned to the IJ to correct the error, and issue a new decision.

    An appeal with the BIA typically takes about six months or a year, but it depends on the case.

    If you lose at the BIA, you can file a Petition for Review with the appropriate federal appellate court, and if you lose there, you can try to go to the U.S. Supreme Court. Very, very few cases make it that far. Also, if you lose at the BIA, whether or not you go to federal court, you are no longer eligible for a work permit based on a pending asylum case, and you can be deported (typically, ICE will not deport someone with a pending federal case, but they have the legal authority to do so unless the federal court issues an order “staying” removal). For the vast majority of aliens, if you lose at the federal appellate level, that is the end of the line.

    In my experience, it is a bit easier to win an asylum case in Immigration Court as compared to the Asylum Office. But it is much more difficult to win at the BIA, and even more difficult to win at the federal appellate level.

    So this is the basic process that most cases follow if they are denied at the Asylum Office. There are some exceptions and different paths (most notably Motions to Reopen and/or Reconsider), but the majority of applicants will follow this process. If your case is rejected by the Asylum Office, it becomes even more important to have a lawyer assist you. If you can't afford a lawyer, check this posting for some helpful resources. And remember, losing at the Asylum Office is frustrating and upsetting, but it is by no means the end of the road. Keep fighting, and hopefully, you will have a good result in the end.

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