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Jason Dzubow on Political Asylum

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  1. The Curse of the "Recommended Approval"

    In November 2012, we received a "recommended approval" from the Asylum Office for one of my Afghan clients--we'll call him Dave, though as you might guess, that is not his real name.
    Grant or grant not. There is no try.

    We were pleased with the news. Dave had worked for the United Nations and as a contractor for USAID- and NATO-funded agencies in Afghanistan. The Taliban became aware of his work and threatened him. They contacted him by phone. They said he was an infidel and an American spy. They told him, "We are watching you. We know everything about you and your family. We know where you are." A bearded stranger approached his children after school and tried to lure them away from their classmates. The threats escalated and so Dave decided to seek asylum in the U.S.


    Dave had a United States visa, but his wife and children did not, so he came alone, in the hope that this would end the threats and that his family members could follow him later.

    In those days--before the asylum backlog--cases moved more quickly. We filed the case in September 2012. Dave was interviewed the next month and received his recommended approval in November. So far, so good (but as Megadeth might say, "so what?").

    But what does it mean, this "recommended approval?" A person receives a recommended approval if the Asylum Office has determined that she is eligible for asylum, but for some reason the decision cannot yet be issued. The Asylum Office generally won't give the reason why they cannot issue the decision, but in most cases, it seems to be because the security background check is not complete.


    So what is the "security background check," you ask. Every asylum applicant has their biometric and biographic data checked against several government data bases to determine if they might be terrorists or criminals. While these checks never seem to cause delay in Immigration Court cases (defensive asylum cases), they can take a long time for Asylum Office cases (affirmative asylum cases). Why is that? I don't know. I asked once at a USCIS meeting, and they said it was because there are different checks at the Court and at the Asylum Office. I've never found anyone who could explain why the two agencies (DOJ and DHS) use different background checks, and because security issues are hush-hush, I doubt I'll ever get a good answer on this point.


    So Dave's case was delayed while we waited for the final approval. In those pre-backlog days, the one benefit of a recommended approval was that the applicant could immediately apply for an EAD--an employment authorization document. In general, if an asylum applicant does not have a decision within 150 days of filing, he can apply for an EAD. With the current backlog, nobody gets a decision in 150 days and so everyone applies for the EAD. Prior to the backlog, many people received decisions in less than five months; others--like Dave--received a recommended approval in less than 150 days. Such people could immediately apply for the EAD. Dave applied for his EAD.


    For asylum applicants with a recommended approval, the worst part about waiting is the uncertainty. When will the Asylum Office issue the final approval? Might something change so that the case is denied? For people separated from family members, the uncertainty and loneliness is extremely stressful.


    As the months passed, our initial happiness with Dave's recommended approval began to fade. When would the final decision come? I periodically made inquiries to the Asylum Office. We never received a substantive reply.

    Then Dave's wife got sick. He was worried about her, and worried about his children, but he decided to stay in the U.S. and hopefully get a decision soon. More time passed.

    A year after we received the recommended approval, one of Dave's children became seriously ill. We notified the Asylum Office and again requested a decision. We got no response. But Dave continued to wait and hope that he would receive his final approval so he could bring his family to safety.


    The days and weeks and months continued to pass. Finally, as we reached the two-year anniversary of Dave's recommended approval, he called me and told me that he had decided to return to Afghanistan. His children were suffering from health issues and he had not seen them (except via Skype) for more than two years. He was giving up on his asylum case and returning to his family, and to the danger.


    So what can we learn from Dave's story? My feeling about the whole fiasco is that Dave would have been far better off if the Asylum Office had simply denied his case in November 2012 rather than issue a recommended approval. Under U.S. law, a person does not have a duty to rescue another who is in danger. However, if a person undertakes a rescue, he is obligated not to act negligently. The U.S. has created a system for asylum. People like Dave rely on that system. In this case, the system failed Dave, and--at least for him--the lure of asylum and of safety created by the asylum system cost him and his family dearly: Two-plus years with his wife and children lost, other options for safety missed, savings exhausted.


    There is an ironic denouement to the story. A few months after Dave left the U.S. and 2.5 years after the recommended approval, the Asylum Office sent a notice to get fingerprinted: "Please process the fingerprints as quickly as possible," the note advised. Was this a cruel joke? I tried to have the fingerprints done at the U.S. Embassy in Kabul, but they could not (or would not) do it. We have still not heard from the Asylum Office about Dave's case. I suppose it remains pending, but who knows? When last I emailed Dave (about the fingerprints), he replied, "I still have hope and... I am hopeful."

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