ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Jason Dzubow on Political Asylum

description

  1. The One-Year Asylum Filing Deadline and What to Do About It

    The law requires that people who wish to seek asylum in the United States file their applications within one year of arriving here. See INA § 208(a)(2)(B). Those who fail to timely file are barred from asylum unless they meet an exception to the rule (they may still qualify for other—lesser—humanitarian benefits such as Withholding of Removal and relief under the United Nations Convention Against Torture).


    If you arrived in the U.S. on this day, you are still eligible to apply for asylum, even if it seems like a hundred years ago.

    So why do we have this rule? And what are the exceptions?

    Congress created the one-year bar in 1996. Its ostensible purpose is to prevent fraud. If you really fear return to your home country, the theory goes, one year should be enough time to figure things out and get your application filed.

    For most people, I suppose that this is true—they can ask questions, find help, and file for asylum within a year. But this is easier for some than for others. People who are less educated, people whose life experiences have taught them to mistrust and avoid authority, people who are isolated and socially disconnected, people who are depressed; such people might have a harder time with the one-year bar (and of course, many of these characteristics are common among asylum seekers). Others will have an easier time: Well-educated people, people who speak English, people who have a certain level of self-confidence, and people who are engaged with the community.

    There are also certain populations that seem to have difficulty with the one-year rule. At least in my experience, many LGBT asylum cases were filed after the one-year period. I suspect there are several reasons for this. For one, an immigrant’s primary connection to mainstream America is her community in the U.S. But if she is afraid to reveal her sexuality to her countrymen living here, and she cannot get their help with the asylum process, she may be unable to file on time. Also, there is the coming-out process itself. People in certain countries may not have even conceptualized themselves as gay, and so the process of accepting their own sexuality, telling others, and then applying for asylum may be lengthy and difficult.

    Asylum seekers like those discussed above are sometimes blocked by the one-year rule, but in these cases, the rule is not preventing fraud; it is harming bona fide applicants.

    Where the rule seems more likely to achieve its intended purpose is the case of the alien who has spent years in the United States without seeking asylum, and now finds himself in removal proceedings. Such aliens often file for asylum as a last-ditch effort to remain in the U.S. (or at least delay their deportation). Many people from Mexico and Central America are in this position, and the one-year rule often blocks them from obtaining asylum (in addition, such applicants often fear harm from criminals; this type of harm does not fit easily within the asylum framework and contributes to the high denial rate for such cases).

    Although there may be situations where the one-year bar prevents fraud, the vast majority of immigration lawyers—including this one—think it does little to block fake cases, and often times prevents legitimate asylum seekers from obtaining the protection they need. In short, we hate this rule, and if I ever become king, we will find other, more effective ways, to fight fraud. Until then, however, we have to live with it.

    So for those who have missed the one-year filing deadline, what to do?

    There are two exceptions to the one-year rule: Changed circumstances and extraordinary circumstances. See INA § 208(a)(2)(D). If you meet either of these exceptions, you may still be eligible for asylum. Federal regulations flesh out the meaning of these concepts. See 8 C.F.R. §§ 208.4(a)(4) & (5). First, changed circumstances--

    (4)(i) The term “changed circumstances” … refer to circumstances materially affecting the applicant's eligibility for asylum. They may include, but are not limited to: (A) Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; (B) Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or (C) In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.

    (ii) The applicant shall file an asylum application within a reasonable period given those “changed circumstances.” If the applicant can establish that he or she did not become aware of the changed circumstances until after they occurred, such delayed awareness shall be taken into account in determining what constitutes a “reasonable period.”

    It is a bit unclear how long this "reasonable period" is. A few months is probably (but no guarantee) ok, but six months is probably too long. So if there are changed circumstances in your case, the sooner you file for asylum, the better.

    The regulations also define extraordinary circumstances--

    (5) The term "extraordinary circumstances” … shall refer to events or factors directly related to the failure to meet the 1-year deadline. Such circumstances may excuse the failure to file within the 1-year period as long as the alien filed the application within a reasonable period given those circumstances. The burden of proof is on the applicant to establish... that the circumstances were not intentionally created by the alien through his or her own action or inaction, that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and that the delay was reasonable under the circumstances. Those circumstances may include but are not limited to:
    (i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;
    (ii) Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;
    (iii) Ineffective assistance of counsel….
    (iv) The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
    (v) The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and
    (vi) The death or serious illness or incapacity of the applicant's legal representative or a member of the applicant's immediate family.

    Again, if you have extraordinary circumstances, you must file within a "reasonable period." How long you have to file has not been clearly defined, so the sooner you file, the safer you will be in terms of the one-year bar.

    When it comes to asylum, the best bet is to file within one year of arrival. But if you have missed that deadline, there are exceptions to the rule. These exceptions can be tricky, and so it would probably be wise to talk to a lawyer if you are filing late. It is always a shame when a strong asylum case is ruined by a one-year issue. Keep this deadline (emphasis on "dead") in mind, and file on time if you can.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. Waiting Is the Hardest Part

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


    Some liminal spaces are more fun than others.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Tags: asylum, fbi, fraud Add / Edit Tags
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: