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Jason Dzubow on Political Asylum


  1. New Rule Spells Potential Trouble for Asylees

    There’s a new State Department rule in town about misrepresentation, and it could signal trouble for certain asylum seekers and others who enter the country on non-immigrant visas and then seek to remain here permanently or engage in other behavior inconsistent with their visas.

    The State Department has a long tradition of blocking visas for people facing persecution (if you don't believe me, Google "Breckinridge Long").

    To understand the problem, we first need to talk a bit about non-immigrant visas (“NIV”). To obtain an NIV, you have to promise to comply with the terms of that visa. One common NIV requirement is that you must intend to leave the U.S. at the end of your period of authorized stay (some NIVs are exempt from this requirement, most notably the H1b and the L, which are known as "dual intent" visas). Another common NIV requirement is that the visa-holder should not work in the U.S. without permission. If you breach these requirements, there are often—but not always—immigration consequences.

    For example, up until the rule change, if an alien entered the U.S. on a B or F visa, or on the Visa Waiver Program, and then filed to “adjust status” (i.e., get a green card) within 30 days of arrival, the alien was presumed to have had an “immigration intent” at the time of entry, and thus USCIS would assume that she lied about her intention to leave the U.S. at the end of her authorized stay (in government-speak, this is called a misrepresentation). If she violated her status between 30 and 60 days after arrival, USCIS might still decide that she misrepresented her intentions when she got the visa (this was known as the 30/60 day rule). If she filed for the green card on day 61 or beyond, she would generally be safe. There are exceptions and caveats to all this, but you get the picture.

    Enter the new rule, which appears in the State Department’s Field Adjudications Manual (at 9 FAM 302.9-4(B)(3)):

    [If] an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry… you [the consular officer] may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

    This change specifically affects people applying for visas at U.S. consulates, but it seems likely that USCIS could adopt the rule as well, which would mean that people who come to the United States on certain NIVs and who engaged in “non-status-compliant activity” within 90 days of arrival will be presumed to have lied in order to obtain their visas. All this means that the 30/60 day rule is dead, at least so far as the State Department is concerned, and probably for USCIS as well.

    This is all pretty boring and confusing, you say. What does it have to do with asylum seekers?

    The issue is, if a person comes to the United States and applies for asylum within 90 days of arrival, he might be considered to have lied about his “immigration intent” in order to obtain a U.S. visa. In other words, requesting asylum (and thus asking to stay permanently in the United States) is not consistent with coming here on most NIVs, which require that you promise to leave the U.S. at the end of your authorized stay.

    This problem is not just academic. I’ve recently heard from a colleague whose client came to the U.S., won asylum, and obtained a green card. But when the client applied for citizenship, USCIS accused him of a “misrepresentation” because he entered the country on an NIV and then sought to remain here permanently through asylum. This example comes amidst several cases—including one of my own—where USCIS seems to have pushed the boundaries of the law in order to deny citizenship to asylees. It also seems part of a larger pattern to "bury lawyers and their clients in requests for more and more documentation, and clarification on points that were already extremely clear in the initial filing."

    I should note that the above examples are not related to the new State Department rule (probably), though if USCIS implements a similar rule, it would potentially expose many more asylees (and other USCIS applicants) to the same fate.

    It’s a little hard to understand what USCIS is trying to do here, or why they are doing it. For one things, there is a waiver available to refugees and asylees who commit fraud (the waiver forgives fraud and allows the person to remain in the United States). Also, when a person fears persecution in her country and qualifies for asylum, low-grade misrepresentations are routinely forgiven. So the likelihood that any asylee would ultimately be deported for having lied to get a visa is close to zero. In other words, USCIS can delay the process, and cause these asylees a lot of stress and expense, but in the end, they will remain here and most likely become U.S. citizens (eventually).

    Perhaps this is the Trump Administration’s implementation of “extreme vetting.” If so, it’s more appearance than substance. It looks as if something is happening, but really, nothing is happening. Except of course that USCIS is mistreating people who have come to the United States and demonstrated that they have a well-founded fear of harm in their home countries. So—like a Stalinist show trial—such people will admit their “misrepresentations” (in many cases, for the second, third or fourth time), go through the hassle, stress, and expense of the waiver process, and then end up staying here just the same.

    It’s too bad. USCIS can do a lot of good—for immigrants and for our national security. But unfortunately, their current path will not lead to improvements in either realm.

    Originally posted on the Asylumist:
    Tags: asylum, fraud, uscis Add / Edit Tags
  2. Old Asylum Cases Are the New Priority

    As of December 2014, there was 73,103 asylum cases pending in Asylum Offices across the United States. That's up from 65,759 in October, an increase of 7,344 cases in just three months (you can see the latest stats here, including a breakdown for each Asylum Office). So it's clear that despite their efforts, the Asylum Offices are continuing to fall behind in terms of processing cases. Indeed, in the best month of the last quarter, the Asylum Office completed 2,947 cases. At that rate--and assuming no new applicants file for asylum--it would take over two years to get through the current backlog. This is not good, and the Asylum Offices are now making changes to deal with the situation.
    "Congratulations! It's finally your turn."
    I've written before about the reasons for these delays. Primarily, it was due to a significant increase of asylum seekers from Central America arriving at our Southern border. As best as I can tell, the number of people coming here from Central America has not abated. Since most of these applicants are detained at government expense and because many of them are minors, their cases are given priority, at the expense of other asylum seekers.

    So how were the Asylum Offices dealing with the increased volume, and what has changed?

    Until December of last year, the Asylum Offices were attempting to process cases on a “last in, first out” basis. Meaning, they skipped over the old cases and tried to process new cases. The logic was that if they started with the old cases, processing times would be greatly increased for new cases. If an alien knows her case will take several years, she might decide to file a frivolous case, just for the Employment Authorization document ("EAD"). The slower the case moves--the thinking goes--the greater the incentive for such people to file false cases. The fear of frivolous applicants taking advantage of the system in this way is not unfounded.

    In the 1980s and early 1990s, when a person filed for asylum, he received an EAD more quickly. At this time, there were massive delays and cases took many years. The combination of long waiting periods and quick EADs encouraged fraud. I heard one anecdote from an INS officer who remembered a U-Haul truck full of applications arriving for processing. They were all boilerplate cases from China, filed by the same (probably unscrupulous) attorney. Even if the cases were ultimately denied, the applicants would have an EAD and be able to live and work in the U.S. for several years. Of course, many cases during this period were legitimate. In those days, there were very brutal civil wars in several Central American countries. As a result, many people fled to the United States.

    In 1995, the law changed so that asylum applicants had to wait 180 days before they were eligible for an EAD (though they could mail the application for the EAD after 150 days). This was intended to reduce fraud. I have my doubts as to whether this change made much of an impact, but as the civil wars to our South ended, refugee flows decreased, and the Asylum Offices slowly reduced wait times. By the time I went into private practice (in late 2003), asylum cases were interviewed a few months after filing, and most applicants received decisions a few weeks after the interview.

    This all changed in early 2013, when large numbers of Central Americans--mostly young people--again began arriving at our border. The migration was not spurred by war, but by generalized violence from gangs and domestic abusers, as well as a failure by Central American governments to protect their citizens. The influx of new people overwhelmed the system and created the situation that we have today.

    USCIS (the Asylum Office) has been struggling to keep up. Here is a recent announcement about their efforts:

    The USCIS Asylum Division is hiring an additional 175 asylum officers, increasing the number of authorized asylum officer positions to 448. This represents a 65% increase since July 2013. As of January 2015, the Asylum Division has 350 officers on board and continues to hire and train new personnel. During 2014, USCIS also trained and temporarily detailed officers to the Asylum Division to assist with the increasing workload.

    Unfortunately, their efforts have not been enough. As of December 26, 2014, they abandoned the "last in, first out" system. Now, the Asylum Offices will process cases in the following order of priority:

    • First, applications that were scheduled for an interview, but the applicant requested a new interview date;
    • Second, applications filed by children; and
    • Third, all other pending affirmative asylum applications will be scheduled for interviews in the order they were received, with oldest cases scheduled first.

    In other words, aside from rescheduled cases and cases involving children, the Asylum Offices will now process old cases first. So what does this mean?

    First, the good news. For those who have been waiting for two years for an interview, hopefully, your time is coming soon (though in my office, we have not yet seen any of our old cases scheduled).

    Next, the bad news. If you are a new asylum applicant, you can expect to wait a long time for your interview. How long, we do not know, but I suspect that--even if they hire more officers, as they are trying to do--it will be at least a year. There are some minimal things to do to make a case faster (the "short list" and a request to expedite for emergent reasons), but generally it is very difficult to obtain a faster interview date.

    And finally, the possibly bad news. We will see whether long delays encourage people to file more frivolous cases. If so, it will further clog the system.

    As for me, of course I am rarely happy about change, and this change is no exception. I am glad that the government will start processing old cases. Those people have been waiting a long time. However, I wish they would give priority to people separated from their spouse and children--whether they filed two years ago or two days ago. It seems to me that single people can endure the wait much better. Like the old system, the new system does little to help people who are missing their family members, and to me, that is the real tragedy of the backlog.

    Originally posted on the Asylumist:
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