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Jason Dzubow on Political Asylum

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  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
  4. Immigration Judges Revolt Against Trump Administration

    In a little noted, but quite extraordinary move, the National Association of Immigration Judges ("NAIJ") has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to "evaluate judges’ performance based on numerical measures or production quotas." According to NAIJ, "If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts." "Judges can face potential termination for good faith legal decisions of which their supervisors do not approve."


    EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).


    Let's start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs' union): "Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted."

    According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

    Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, "The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases."

    The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration's goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR - the office that administers the nation's Immigration Courts) recently announced a plan to "transform[] its institutional culture to emphasize the importance of completing cases." In other words, EOIR will judge its judges based--at least in part--on the number of cases completed.

    NAIJ has called this development "alarming" and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

    This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien's due process rights, and the integrity of our Immigration Courts.

    NAIJ has long believed that the system needs a "structural overhaul" and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch--the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).


    NAIJ recognizes that creating Article I immigration courts "may not be feasible right now," but it nevertheless urges Congress to protect the nation's IJs from the new Trump Administration policy:

    Congress can... easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

    The fact that IJs themselves are concerned about the Administration's move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

    Perhaps the IJs' concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration's track record in general, and the inexperienced acting director appointed to head EOIR, it's difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ's request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

    Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens "playing" the system, most delay is systematic--it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions--facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants--might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: eoir, trump Add / Edit Tags
  5. On the Benefits of Having a Lawyer

    A recent op-ed in the Wall Street Journal ("Immigrants Need Better Protection--From Their Lawyers" by Professor Benjamin Edwards) laments the poor quality of immigration attorneys, and postulates that as a group, “the private immigration bar now contains the worst lawyers in all of law.”


    It's easy to know which barber to choose (hint: Barber A), but finding a good immigration lawyer can be more challenging.

    The author’s primary solution to the problem of “incompetent” and “predatory” lawyers is to track the success rate of each attorney and then make that information public. In this way, potential customers (i.e., people being deported) can make more informed decisions about their choice of counsel.

    Among practicing lawyers, Prof. Edwards's solution was largely panned as unworkable, ivory-tower thinking. While I generally agree that there is a problem (which I’ve written about in a charmingly-titled piece called, Do Immigration Lawyers Suck?), I also agree with my colleagues that Prof. Edwards’s solution is unworkable (if you’re interested in why it is unworkable, here are some thoughts from Jennifer Minear at AILA).

    While some immigration lawyers are less-than qualified for their jobs, it is none-the-less true that having a lawyer for an asylum case significantly increases the likelihood of a good outcome.

    A new report from TRAC Immigration provides some specific data about asylum cases and representation. The report breaks down the statistics by country, which is quite helpful, as asylum seekers can look for their country, get a sense for how many of their landsmen are represented, and see the success rate for represented and unrepresented applicants. The report covers Immigration Court cases only (from FY 2012 to FY 2017), and does not include cases at the Asylum Office.

    The bottom line is this: For almost all countries, asylum applicants with lawyers are two to four times more likely to win their cases in court, as compared to unrepresented applicants from the same country. There are, of course, some caveats.

    One is that, people with good cases are more likely to have attorneys. This is because people with money, educated people, and people who speak English all have an advantage navigating the U.S. immigration system. Such people are more likely to find a lawyer, and they are also more able to present their cases. People who are detained, who are not educated, and who do not speak English will have a harder time presenting their cases, and will also be less able to obtain representation. In that sense, I think the statistics exaggerate the benefits of having an attorney.

    But even considering these socio-economic factors, the difference between represented and unrepresented applicants is pretty significant, and in the face of these statistics, it’s hard to argue that lawyers don’t help, Prof. Edwards not-with-standing.

    What’s also interesting here is that lawyers provide a multiplier effect on the likelihood of winning. So, for example, an unrepresented case from China has about a 21% chance of success, while a represented case has about an 82% chance of success—a difference of almost four times. And, of course, 82% is a lot better than 21%. A case from El Salvador, on the other hand, has only about a 4% chance of winning without a lawyer, but has almost a 17% chance for success with a lawyer—again, a difference of four times, but in absolute terms, the difference of 4% versus 17% is a lot less significant than 21% versus 82%. Put another way, when the average Chinese applicant hires an attorney for her asylum case, she appears to be getting a lot more for her money than the average Salvadoran applicant.

    Why should this be? Why should a lawyer multiply the chances of winning rather than increase the likelihood of victory arithmetically by, say, 10 percentage points across the board (so that the Chinese applicant would go from a 21% chance of success to 31%, and the grant rate for Salvadorans would increase from 4% to 14%)?

    The short answer is that I don’t know. Maybe one explanation is that asylum seekers from certain countries present claims that more easily fit within the legal parameters of our asylum system. So cases from China—which often involve political or religious persecution—are more amenable to a grant than cases from El Salvador, which often involve a fear of harm from criminals. Our asylum law quite clearly protects people fleeing religious or political persecution, but it offers little for people fleeing crime. Under this theory, lawyers representing Chinese applicants can help ensure that their cases are presented in a manner that meets the requirements for asylum. It is more difficult to do this for Salvadorans. Or put in more classic terms, even a great lawyer can’t make a silk purse from a sow’s ear.

    Another interesting tidbit from the TRAC numbers is the level of representation in each community. Almost 96% of Chinese applicants had attorneys. Contrast that with Salvadorans, who were represented in only about 73% of cases. Looking at the top 10 source countries for asylum seekers, Haiti had the lowest rate of representation—only about 56% of Haitian asylum seekers had lawyers.

    Finally, while it may be somewhat early to discuss trends since President Trump took the helm, the numbers for FY 2017 show an increase in the absolute number of asylum cases decided by Immigration Courts (from 22,312 in FY 2016 to 30,179 in FY 2017) and in the percentage of asylum cases denied (from 56.5% denied in FY 2016 to 61.8% denied in FY 2017). While these numbers are not encouraging, the upward trend in asylum denial rates actually began in FY 2012, under President Obama (denial rates have steadily risen from 44.5% in FY 2012 to 61.8% today).

    So what are asylum seekers to make of all this? It seems to me that the most important take-away is that a lawyer in court can significantly increase the likelihood of success, as long as that lawyer is competent and makes an effort to help you with your case. I’ve written previously about the cost of a lawyer, and what the lawyer should do for you. I’ve also written about how to find a free lawyer if you cannot afford to hire one. If you are careful, if you ask questions, and if you make an effort to find an effective attorney, you can greatly increase the possibility of winning your asylum case in court.

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