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Jason Dzubow on Political Asylum

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  1. Must Asylum Lawyers Advise Our Clients to Enter the US “Illegally” Through Mexico?

    Delays in the U.S. affirmative asylum system have just about reached a breaking point. In our office, the longest-waiting applicant recently passed the three-year anniversary of his asylum interview, with no decision in sight. And of course, it's not just post-interview delays (usually due to security background checks) that are the problem. Anyone interested in asylum knows about the long wait times--anywhere from two to five years--before an applicant even receives her interview.
    "At least we're all together."

    Perhaps these wait times are tolerable for a single person or a family that is together here in the U.S. After all, such applicants (eventually) receive a work permit, which allows them to work, attend school, obtain a driver's license, and live a relatively normal life (though it is a life overshadowed by the uncertainty and stress of not knowing whether they can remain here).


    But what about an asylum seeker who is here, but separated from his spouse and children? Can a person wait for three, four, five years or more to reunite with family members? Will a young child even know her parent, if the only contact she's had with the parent over the last several years has been via Skype? And won't such long delays make the process of integration that much more difficult for family members who are "following to join" the principal asylum applicant?


    For all these reasons, I believe USCIS should be prioritizing cases of applicants who are separated from their families. Unfortunately, USCIS does prioritize such cases.


    There is a possible alternative to waiting for years separated from family: Arrive at a port of entry without a visa and ask for asylum. There are different ways to arrange such an arrival. It can be done legally or illegally. It can be very dangerous or relatively safe. My question here is, what obligation do attorneys have to advise our clients about the different options?


    First, though, I want to briefly discuss the various options, starting from the worst and working up to the best (or, more accurately, the least bad).


    The most illegal, and most dangerous way to come to the U.S. is by hiring a smuggler and paying him to bring you to the United States. There are all sorts of smugglers, and all sorts of smuggling routes. Some routes are relatively direct; others are circuitous. People die along these smuggling routes. Many others are robbed or raped. The majority seem to get detained in various countries for various periods of time. Some get stranded for months or years. And some are lucky and arrive with few difficulties. The cost of such trips varies widely. I have heard about people paying anywhere from $10,000 to $80,000; South Asian and Chinese migrants tend to pay more than Africans. This route almost always brings the alien to the Southern border, where she can try to enter the U.S. illegally (this has become increasingly difficult and dangerous) or where she can present herself to a U.S. Customs Officer and ask for asylum (this seems to be the more popular path these days).


    Another illegal way to come here is to travel by air using a fake visa and/or passport, or the passport and visa of another person. Such documents can be difficult and expensive to obtain for an individual. For a family, the cost and trouble of getting fake documents is probably much greater. Once the alien arrives at the airport, he can present the documents and try to enter the U.S. or he can ask the Customs Officer for asylum.


    A final option is to travel legally to Mexico, travel legally to the U.S. border, and inform the Customs Officer that you wish to apply for asylum.


    In each case, assuming that she does not manage to pass inspection and enter the United States, the asylum seeker will be detained--maybe for a few hours and maybe for many months. Many asylum seekers who make it that far are ultimately denied asylum and deported (and some remain detained during the entire Immigration Court process).


    Given all these risks, it’s clear that the best alternative is to come to the United States with a visa and then seek asylum after you enter the country. The problem, of course, is that it is very difficult to obtain a U.S. visa, especially for nationals of countries that tend to send asylum seekers to the United States, and especially especially for such nationals who want to come here with their spouse and children.


    As lawyers, though, we have an ethical obligation to inform our clients of the options and to let them make their own decision. So when a father comes to my office and I explain the delays in the asylum system, and I tell him that he probably won’t see his children again for two, three or more years, and then he asks whether there is any way to bring his children here sooner, what am I to say? I suppose I can tell him about the process to expedite cases, but that process barely works and, at best, it is very unpredictable. I can also advise him to try to get visas for his family members, but we both know that this probably won’t work (and it’s also ethically questionable, since I would be advising the family members to come here on a non-immigrant visa when I know they plan to remain here permanently). But what about the “Mexico option”? Do I have an obligation to suggest that his family members apply for Mexican visas, which may be easier to get than U.S. visas, and then come to the Southern border for asylum?


    The more I have considered this path, the more I think I am obligated to tell my clients about it. For one thing, it is entirely legal (yes, the title of this article says that it is “illegal,” but let's call that a literary flourish to make the subject of the article more clear). If they arrive legally in Mexico, they can travel to the U.S. border and--even though they do not have permission to enter the United States--they can request asylum at the border. Despite misperceptions to the contrary, requesting asylum at border is legal. See INA § 208(a)(1).


    Under U.S. law, the "circumvention of orderly refugee procedures" generally does not block a person from obtaining asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). In other words, if a person does not wait for resettlement as a refugee, but instead travels to the U.S. to seek protection, he is not blocked from receiving asylum. Indeed, in my office, we have represented many people who arrived without a visa at the Southern border, and none of them was denied asylum due to the “illegal” entry.


    So if a client is here in the U.S., stuck in asylum purgatory, and asks what she can do to bring her spouse and children to the U.S., I suppose I must mention the “Mexico option.” I can’t say I would recommend this option—the spouse and children will likely end up detained—but I do not think this is a decision for me to make. Maybe they are better off in detention, with a chance of release to join their asylum-seeker family member, than in the home country indefinitely separated from that family member and possibly in danger themselves.


    As a lawyer, I have an ethical obligation to inform my clients about all the lawful options available to them—even the options I personally do not prefer. The path through Mexico may be an option for some, and asylum seekers have a right to know about it, so that they can make the best decisions for their families.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, delay, mexico Add / Edit Tags
  2. Asylum in Canada Is Not for Everyone (Sorry Aboot That)

    This piece is by our intrepid associate, Ruth Dickey, who is well-known for her love of Canada.

    Given the current mess that is the U.S. asylum system, it’s not surprising that many asylum seekers who first land in the United States have been heading North to make their claims in Canada. Perhaps they are lured there by faster asylum processing times and a more generous attitude towards refugees. While it may sound idyllic to roll out of your igloo in the morning, pick up your Tim Horton’s coffee, and commute to work on a polar bear, obtaining asylum in Canada after you’ve been in the United States may not be so easy.

    Ruth Dickey: On assignment in Canada to research the Safe Third Country Agreement.
    The main problem in Canada for asylum seekers who have passed through the United States is something called the Canada-U.S. Safe Third Country Agreement ("STCA"). This treaty requires applicants to make their asylum claims in the first safe country they enter. Thus, if you first enter the United States, you have to make your asylum claim here. If you first enter Canada, you have to make your claim in that country.


    The STCA has four exceptions: (1) The applicant has family members with lawful status in Canada; (2) The applicant is a minor travelling without a parent; (3) The applicant has a document that allows him to enter Canada; and (4) The applicant faces the death penalty. More details about these exceptions can be found here.


    The most common exception is probably the family member exception; it may also be the exception that creates the most confusion, so let’s take a closer look. Under the STCA, the term “family member” is broadly defined, to include:


    • spouse
    • legal guardian
    • child
    • father and/or mother
    • sister and/or brother
    • grandfather and/or grandmother
    • grandchild
    • uncle and/or aunt
    • nephew and/or niece
    • common-law partner
    • same-sex spouse


    You can see that Canada allows people to meet the family-based exception with a wide range of relatives. Cousins are not on the list, but virtually all other categories of relatives are.


    In our office, we currently represent several people who left the U.S. to seek asylum in Canada, only to be turned back at the border. One client hired us in 2014, after he attempted to enter Canada from the U.S. He had qualifying Canadian relatives who were naturalized citizens of Canada. However, he had no documentation to prove the relationships, and so Canadian border officials rejected his request for entry and quickly returned him to the United States.


    Unlike many people who filed for asylum in 2014, our client was lucky enough to get a prompt interview. However, like many applicants, his decision was delayed. Only recently—a year and a half after his first interview—he was called for a second asylum interview where he was questioned about his trip to Canada. Unfortunately, a well-meaning, but not-so-well-informed relative in Canada tried to help our client while he was in Canadian custody, and made some contradictory statements to Canadian officials. The Asylum Officer had the records from Canada, and asked our client about the relative’s statements. Our client explained the situation as well as he could, and we are still waiting for a final decision.


    There are some lessons to be drawn from this client’s ordeal. First, going from the U.S. to Canada can do more harm than good. Even if you don’t have some well-intentioned relative meddling in your case, it takes time for the Asylum Office to get Canadian immigration records and review them. That means more delay (on top of already long delays), and no one wants that. Also, if you already tried to seek asylum in Canada and were rejected, tell your lawyer and try to remember any communication that you or your relatives had with the Canadian authorities—the Asylum Officer will likely have access to your records, so plan accordingly.


    Another lesson is that, if you are seeking a family exception--through your uncle, for example--you should bring civil records (and translations) demonstrating that you and your uncle are related. Our client’s experience shows that Canadian border officials will not necessarily wait around for you to collect these documents once you reach Canada. You need to have the documents with you before your trip.


    Finally, if you do plan to seek asylum in Canada, and you are in the U.S., you would be wise to consult with a Canadian immigration lawyer before traveling. Maybe you qualify for an exception to the STCA and maybe you don't. A Canadian lawyer familiar with that country's immigration laws should be able to advise you before you take on the risk and expense of going to Canada for asylum.


    There are certain advantages to asylum in Canada, and some people who pass through the U.S. are eligible to seek refuge in that country. But unless you plan ahead for your trip, you may end up back in the United States and worse off than when you started.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, canada Add / Edit Tags
  3. Did Immigration Advocates Help Create Donald Trump?

    As Donald Trump marches (goose steps?) toward the Republican nomination, there's been much hand wringing about the reasons for his rise. But if you listen to his supporters, there are a few themes that stand out.
    Mr. Trump's real estate empire and his political campaign were both built using immigrants.

    One big issue is immigration. Last June, Mr. Trump called Mexican immigrants "rapists" and he has advocated banning all Muslims from entering the United States. Indeed, for a time, the only issue on the Trump campaign website was immigration (or maybe more accurately, anti-immigration).


    There are many explanations for why Mr. Trump's xenophobia has resonated with his supporters: Fear of terrorists and criminals, economic and cultural concerns, racism and white supremacism. In a way, these are not new. For most of our country's history, U.S. immigration policies have reflected such sentiments, and at various times, all sorts of people have been blocked from entering the United States.


    Here, however, I am interested in a different question: Whether the work of immigration advocates to help asylum seekers has contributed to the climate that produced Donald Trump.


    Now wait just one gosh-darned second here, you say. Isn't this like blaming Jews for the Holocaust or blaming African Americans for the KKK? I think there's a difference. Allow me to explain--


    Over the last 20 or so years, we've seen a marked expansion in the types of people who qualify for asylum. Some of this was Congressionally sanctioned--protecting victims of forced abortion, for example--but mostly, it was the result of creative lawyers pushing the boundaries of the law to protect their clients. Litigation has resulted in protection for victims of female genital mutilation, domestic violence, and forced marriage. To a more limited extent, victims of criminal gangs can also qualify for protection (sometimes), and many talented attorneys are working hard to improve asylum-case outcomes for such people, whose lives often are at risk.


    Until about 2012 or 2013, the effort to broaden the categories of protection was somewhat theoretical. More people were eligible, but the number of asylum seekers actually applying remained relatively stable. But then things changed.


    Between 2009 and 2012, increasing numbers of people--mostly Central American--began arriving at the Southern border to seek asylum (in FY 2009, there were about 5,500 such asylum seekers; in FY 2012, there were over 13,600). Since 2013, the numbers have skyrocketed. The most recent data shows that well over 6,000 people per month are requesting asylum at the border.


    Most of the Central American applicants don't easily fit within the traditional protected categories of asylum. They are fleeing criminal gangs and domestic violence, but given the expanded range of people who can qualify for protection, they now have a realistic possibility of receiving asylum.


    As the number of migrants from Central America was on the upswing, activists for the DREAM Act began seeking asylum in order to highlight their own plight (the DREAM Act, which has been stalled in Congress, would grant residency to certain undocumented immigrants who were brought here as children and who have lived their lives in the United States, but who currently have no lawful immigration status). The DREAM activists received a lot of attention in the media, and they demonstrated in a public way that asylum seekers could arrive at the Southern border, request protection, and be paroled into the country to pursue their cases.


    It seems likely that these two events--changes in the law wrought by litigation and wide-spread publicity about asylum seekers gaining entry into the U.S. at the border--helped lead to the current spike in migration. This is not to say that people coming here for asylum are not also fleeing severe violence in their home countries--they are: Honduras, El Salvador, and Guatemala are three of the most dangerous places on Earth. But when you look at data about violent crime in those countries, there is little evidence correlating increased violence with increased migration. In other words, these countries had previously been very violent; something else seems to have spurred the current wave of migration. Quite possibly, that "something else" includes an improved legal climate and publicity about asylum.


    Added to all this is the Obama Administration's decision to allow an additional 10,000 Syrian refugees to resettle in the U.S. at a time when fear of terrorism seems to be at an all-time high. This decision was not made in consultation with Congress; the President has the power to make such a decision and he did. A slew of Republicans weighed in against the move.


    We now return to Donald Trump.


    The idea that "liberal elites" are making decisions to encourage more immigration, and that ordinary Americans (i.e., Trump supporters) have no say in these decisions, fits neatly into Mr. Trump's narrative. This world view is not unrelated to reality. Indeed, as we've seen, recent changes related to asylum and refugee policies likely have brought more immigrants to the United States, and these changes were not reached by consensus, or even by a democratic process. Rather, they were achieved through litigation and civil disobedience, or via executive action--all methods of choice for the "liberal elite."


    Should we--the liberal elite--have done things differently? I'm not sure, but I certainly won't apologize for the work of advocates and activists to represent our clients and to expand the law. That is our job and our duty. The President's decision to bring more Syrian refugees here was also the right choice, and--to me at least--represents a fairly tepid response to a massive crisis.


    But obviously there is a problem. Many people feel left out of the decision-making process, and that is wrong. Immigration profoundly affects who we are as a country, and Americans--all Americans--have a right to participate in the policy debate on that topic. In taking action to protect our clients and save lives, we "elites" have, to a certain extent, trampled over the democratic process.


    Perhaps this is all dust in the wind: People who support xenophobes like Mr. Trump aren't likely to have their minds changed by refugee sob stories or even by evidence that immigration actually helps the country. The sad state of our national discourse has prevented the type of rational policy debate that we need to move towards a broader consensus. Against mounting evidence, the optimist in me still believes that democracy works. I'd like to see a little more of it in our national conversation about immigration.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. An Asylee Wonders, Is Sander-Style Democracy Bad for Migrants?

    Ali Anisi Tehrani is an asylee from Iran. He raised some of these issue in a conversation we had one day over lunch, and I asked whether he might put his thoughts into a blog post. He was kind enough to do so--

    “I think we should look to countries like Denmark, like Sweden and Norway, and learn from what they have accomplished for their working people,” Senator Sanders says. He’s not alone. Many Americans envy the Nordic countries, with their affordable education, health care for all, and subsidized child care.

    Feeling the Spurn? Ali Tehrani worries about social democracy and immigrants.
    While these countries are wonderful places to visit, as a political refugee who has spent time in Sweden, I fear that maybe this Nordic Valhalla would not be so heavenly for immigrants after all. Whatever it means for politicians like Bernie Sanders and his supporters, my experience tells me that in the long run, the Scandinavian model would be a disaster for immigrants and for people who plan to immigrate to the United States.


    I have spent almost equal time in Sweden and the U.S. I enjoyed Swedish collective generosity and I studied there for free. The Swedes were even kind enough to send me to the U.S. as an exchange student with full medical insurance! An immigrant friend of mine had three surgeries there and spent weeks in hospitals. He paid very little. In fact, everyone in Sweden has health care and the deductible for medical expenses and medicine was only about $100. In a way, everything was perfect!


    So what the heck am I doing in Washington, DC? Why did I leave the Nordic utopia and move to a country with no social benefits (even after receiving asylum, I was not eligible for short-term medical insurance in Virginia because I earned more than $150 per month)? Perhaps things in Sweden are not as they seem.


    I lived in a small town in Sweden, not super immigrant-friendly. Everyone was nice and polite, and I never had any encounter that could be called explicitly racist or hateful. But I always had the sense that I was unwelcome. That I was a sort-of black sheep (or perhaps a brown one). I can’t say I would feel any different if I were in their shoes: Why should I work in order to pay for some foreigner’s education and benefits? Maybe as a result of this sentiment, the law in Sweden changed in 2011, and free education for foreign students was abolished.


    The current situation in Sweden (and across Europe) is now quite disturbing. We are in the midst of the worst human catastrophe since World War II, and Sweden plans to reject up to 80,000 people who applied for asylum in the country last year; as many as half will be forced to leave against their will. Denmark, Sweden’s neighbor to the south, recently passed laws allowing the authorities to seize any assets exceeding $1,450 from asylum-seekers in order to help pay for the migrants’ subsistence (items of “sentimental value,” such as wedding rings, are exempt).


    Many Swedes, even people who knew me personally and knew that I could not return to my native Iran, had a naive and sincere question: “So… when do you go back?” I never took it personally because I knew they did not ask me to be mean; they asked because they were really interested in the answer. During my three years in the U.S., no one has asked me this question. Literally, not one person! I have been welcomed here by many people; I don’t recall being welcomed in Sweden in this way. Maybe it’s just a lucky coincidence. Maybe.


    If we take a look at some numbers, we might see one reason why immigrants are (or are not) wanted.


    In 2014, the unemployment rate for native-born Swedes was about 5.1%; the foreign-born unemployment rate was 15.5%. It was about the same in Denmark: 5.4% for native-born Danes and almost 12% for immigrants. In Finland, the unemployment rates were 7.5% and 16.3% for native and non-native born people. That makes sense: Foreign-born workers may not know the language or culture, they have limited networks, and they may not have the education or skills required to succeed.


    There's a different story in the U.S. In 2014, there were 25.7 million foreign-born people in the labor force, comprising 16.5% of all workers. The unemployment rate for foreign-born persons in the United States was 5.6%, while the jobless rate for native-born Americans was 6.3%. What!? The unemployment rate for foreigners is lower than for native-born citizens? How can this be?


    To me, the difference is that no one in the United States sees me as an extra person taking their social welfare benefits. Instead, they see me as another taxpayer pulling my own weight. There is opportunity here that does not exist in other countries. Of course, social and cultural norms are different in homogeneous societies like Sweden and Denmark, but I still believe that the most influential factor explaining how immigrants in different societies are treated is economic. Because of this, I worry that a Bernie Sander-style social democracy might make life in the United States more difficult, and less welcoming, for foreign-born residents like me.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. How Much Should I Pay for an Asylum Lawyer?

    Among lawyers, there’s a certain skittishness when it comes to discussing fees. Speaking for myself, I don’t much care for the money-side of the business. We’re not trained to deal with client payments in law school, and the guidance we receive afterwards—from the bar association, for example—is related more to complying with lawyer-trust-account rules than to determining how much to charge.
    If the lawyer spends more time counting your money than working on your case, you probably paid too much.
    In the field of asylum law, attorney fees vary widely. Within my little community, for an affirmative asylum case, I’ve heard about lawyers charging anywhere from $900 to $10,000 (or more). For defensive asylum cases (in court), prices are usually higher. Sometimes these fees are flat fees, meaning you pay a set fee for the entire case. Other times, fees are hourly, meaning you pay for the lawyer's time--the more time the lawyer spends on your case, the more you pay.

    In my office, we charge a flat fee of $3,000 for most affirmative cases, which is fairly competitive with those few attorneys in Washington, DC whose main practice area is asylum. Our fee for defensive cases is usually $4,000. What’s ironic here is that lawyers who do not specialize in asylum—and who consequently have less experience in this area of practice—are actually able to charge more for each case (I remember telling one such lawyer about my fee and she burst out laughing; I took that as a sign that I should raise my rates - maybe one day). In our firm, the bread-and-butter cases are asylum, and so we need to do a lot of such cases. Thus, we have to keep the prices down. If our main practice area was business immigration, for example, we could charge more for each asylum case, since we would not need to do a large number of such cases to make a living.


    So how do you know what is a fair fee for an asylum case? And what exactly do you get in exchange for giving money to an attorney?


    The first question is difficult to answer. Hiring an attorney is not like buying a new car. Whether you buy the car from one dealership or another, it's the same car. With a lawyer, you are paying for his work. Some lawyers are brilliant, honest, and hard working; others are poorly trained, lazy, and dishonest. Paying more money for a lawyer does not mean that you are hiring a better advocate. In fact, I find that there is little relationship between the amount of the fee and the quality of the service. Indeed, lawyers who charge higher fees for asylum are sometimes more interested in earning money than in helping their clients.


    I suppose the first thing you'd have to know in deciding whether an attorney's fee is fair is the quality of the service she provides. There are certain things a good attorney should do. For example, a good attorney will listen to your story and try to evaluate the strengths and weakness of your case; she won't sugarcoat the case in an effort to get your business. A good attorney will make sure you understand the asylum process, the problem of delay, and the possible results in your case. She should also explore any alternatives to asylum that might be available to you. A good attorney will help you put together your case, write your affidavit with you, and advise you about what supporting evidence you should obtain. This point is crucial: The affidavit (or declaration) is the heart of your case, and an asylum applicant may not know what information is legally relevant to include in that document. If the attorney does not spend significant time helping you prepare the affidavit, she is not doing her job. Without a properly prepared affidavit, the odds of success go way down.


    Also, a good attorney should prepare you for your interview by discussing possible questions and answers, and by helping you think through answers to problematic portions of your story. A good attorney should be relatively easy to reach; if you call and leave a message, she should call you back (pet peeve alert: If you call and don't leave a message--like some of my clients--the attorney likely will not call you back, as she won't know that you've called her - so leave a message!). If your lawyer is not providing these services, she is not doing her job, and whether her price is a lot or a little, it is too high.


    A final point, and this is key: A good attorney will never encourage you to lie or agree to represent you if you tell him that you want to lie to the U.S. government. Any attorney who does that is untrustworthy and dangerous. If they are willing to lie to the government, you can bet that they will lie to you.


    If your attorney is providing all the essential services, if you feel comfortable with the attorney, and if you can afford the fee, whatever it is, you are probably getting a fair deal. Maybe that is a cop-out answer, but as I've said, it is quite difficult to place a monetary value on a lawyer's services.


    I truly believe that there is little relationship between price and quality among asylum lawyers. If you find an attorney that you like, but his price is too high, then look for another attorney who is more affordable. Good, reasonably-priced lawyers are out there. But remember too that these cases are a lot of work. Most asylum lawyers who are dedicated to the field don't expect to get rich, but we do need to make a living. And you do need to pay a fair price for their work. Now, if you'll excuse me, I'm off to earn the big money... or not.

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

    Updated 03-10-2016 at 10:07 AM by JDzubow

    Tags: asylum, fee Add / Edit Tags
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