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Jason Dzubow on Political Asylum

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  1. President Trump's Immigration Orders: Some Preliminary Thoughts

    During the first week of his Administration, President Trump has signed two "executive orders" on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.
    This is how it looks when America compromises its values.
    The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client--and a lawful permanent resident based on asylum--was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend's client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending--and minor--criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion--closing certain cases where the alien has no criminal issues and has equities in the United States--has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

    Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:


    • Don't panic. The President has the power to issue executive orders ("EOs"), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
    • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can't just be thrown out of the country. Even an expedited process usually takes months.
    • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing--see below) any crimes.
    • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from "countries of particular concern" (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO's seem to temporarily suspend immigration benefits for people from those nations.
    • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
    • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for "extreme vetting." Since we don't really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
    • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.


    In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.


    The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone's guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from "countries of particular concern." The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.


    The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end "sanctuary" jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply "information needed for adjudications" of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.


    So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump's actions (spoiler alert: They are terribly damaging to our national interests and our country's character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. Work Permits for Asylum Seekers - Some Good News

    The new Administration has raised anxieties in immigrant and asylum seeker communities. In part, this is because of President Trump’s rhetoric (and rhetorical style) during the election. And in part, it’s because we just don’t know what to expect from a Trump Administration. Rumors have been flying: Will there be some sort of Muslim ban? Will the President repeal DACA? Or will he (and Congress) create a permanent legalization for DACA recipients? Mr. Trump will be issuing some executive orders later today banning Syrian and other refugees from coming to the U.S., and restricting visas for people from certain Middle Eastern countries. How this will all play out, we shall see.
    Filling gaps is a good thing.
    But amidst the uncertainty, there is some good news related to work permits—or Employment Authorization Documents (“EADs”)—for asylum seekers.

    First, last fall, the government started issuing two-year EADs instead of one-year EADs to people with pending asylum cases. This was a helpful development. It saves money since applicants now only have to apply for a new card every other year. It also makes it easier to obtain and retain employment, since employers feel more confident hiring people who have a longer period of authorized employment. In addition, many states issue driver’s licenses that correspond to the dates on the EAD, so a two-year card means a two-year license. All this helps ease the wait for people seeking asylum.


    Second, last week the government issued new (and long anticipated) regulations “to help prevent gaps in employment authorization”:

    DHS is providing for the automatic extension of expiring EADs (and underlying employment authorization, if applicable) for up to 180 days with respect to individuals who are seeking renewal of their EADs (and, if applicable, employment authorization) based on the same employment authorization categories under which they were granted.

    This means that when you file to renew your EAD, your card will be automatically extended for 180 days once you receive the receipt (it usually takes three or four weeks to get the receipt). This is an important development, since USCIS has been taking months to process EAD renewals, and people were losing their jobs and driver’s licenses while they waited for their new EADs.


    The automatic EAD extensions apply to refugees, people with asylum, and people who have pending asylum or withholding of removal cases, among others. You can see the new regulations here (see page 82491, the second to last page of the PDF) and here (page 82455, footnote 98, which lists the categories of people eligible for the automatic EAD extension).


    Also, remember that you can apply for a new EAD up to 120 days before the old card expires. Even with the most recent change, it is still a good idea to apply early for your new card, so you receive the replacement EAD as soon as possible.

    And here’s one last tip for today. If you cannot afford to pay for the new EAD (fees recently went up), you can request a fee waiver from USCIS, which—if granted—allows you to obtain a new EAD without paying the fee. To apply for a fee waiver, use form I-912, available here.

    I have written many times about the affirmative asylum backlog. It has been a real disaster for asylum seekers—especially those separated from their family members. The recent changes to the EAD process, during the waning days of the Obama Administration, have at least made one aspect of the wait easier, and for that, we can be thankful.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. The Refugee Ball Post-Game Report: Why It Matters

    The Refugee Ball took place on Tuesday, January 17, 2017. It was wonderful to see hundreds of people from all different backgrounds and countries come together to celebrate America's humanitarian immigration system.
    Economist, talk show host, women's rights advocate, and amazing singer, Amal Nourelhuda (originally from Sudan), performs at the Refugee Ball.

    There were musicians from Ethiopia, Sudan, Uganda, the Democratic Republic of Congo, and Tibet. There was a Persian rapper. Our emcee was a journalist/asylum seeker from Ethiopia. We had Lebanese, Tibetan, and Ethiopian food, and Syrian cookies. There was artwork by a young Honduran asylum seeker and an Iranian refugee. Speakers included the former Chairman of the Board of Immigration Appeals (who now has his own blog), an asylee from Azerbaijan, and the president and CEO of HIAS, a non-profit organization that assists refugees. We also had a special guest appearance by Congressman Jamie Raskin. All-in-all, not a bad way to spend an evening.


    One message of the Refugee Ball is that asylum seekers and refugees contribute in valuable ways to our society. They bring their skills and talents to America, and we are stronger because of their presence here. Also, by offering asylum to those who work with us and those who share our values, we demonstrate to our allies that we are on their side; that we have got their back. This makes it more likely that people around the world will cooperate with us and work to advance the values that our nation aspires to: Democracy, freedom of speech, women's rights, LGBT rights, freedom of religion, equality, peace. When we have the cooperation of our allies, our country is safer and more secure, and our asylum system helps engender that cooperation.


    And of course, granting protection to those in need of assistance is the right thing to do. I know that if my family members had to flee the United States, I would want more than anything for them to receive a friendly reception in their country of refuge. Do unto others as you would have them do unto you.


    Another message of the Ball is that advocates for asylum seekers and refugees remain committed to assisting people who have come to our country for protection. And although the incoming Administration may create a more difficult environment for our clients, our commitment to those seeking our country's protection will not wane.


    For me, though, the most important message of the Ball was that of the courage and perseverance displayed by the refugees and asylum seekers who I saw there. Many of the people who participated in the event were themselves victims of terrible torture and persecution. But there they were at the Ball--singing and dancing, giving speeches, making art and food for us to enjoy. Each of them provides an example of how the human spirit can survive extreme adversity and go on to create beauty, and of how life can triumph over death. I can't help but be inspired by their examples.


    So while we really do not know what to expect in the days and months ahead, we can draw strength from each other, and from the examples set by the refugees and asylum seekers themselves, who have endured great hardships, but who still have hope that America will live up to the high ideals that we have set for ourselves.


    To those who participated in, supported, and attended the Refugee Ball, Thank you. Thank you for contributing your time, talent, energy, and money to supporting the cause of refugees and asylum seekers. Thank you for inspiring me, and for reminding me of why I work as an asylum attorney. I feel optimistic knowing that we are united in our goal of welcoming the stranger, and that we are all in this together to support each other.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. An Alternative Inaugural Ball for Refugees, Asylum Seekers, and Their Supporters

    The inauguration of a new president is almost upon us. It's traditional to celebrate the democratic transition of power with lavish parties. They take place all over Washington, DC. Some are formal affairs attended by the President and other VIPs; others are much simpler and unpretentious.

    This year, I know that many refugees, asylum seekers, and their advocates are nervous about the new Administration and what it might mean for them and their families. During the campaign, there was a lot of negative talk about immigrants and refugees. It's not surprising then, that many of us are not feeling in a celebratory mood.


    But it seems to me that we need to come together to remind ourselves of why accepting refugees, asylum seekers, and immigrants into our society is so important. We--advocates, clients, family members--draw strength from one another. For that reason, a group of us has organized a "Refugee Ball" for refugees, asylum seekers, their families, advocates, and supporters.


    The purpose of the Ball is not to celebrate the new President; nor is it to denigrate him. Rather, we want to support each other and help demonstrate the value of refugees, asylees, and immigrants to the wider community. We also want to celebrate the core humanitarian values that underpin our refugee and asylum programs--values like compassion, generosity, friendship, diversity, inclusiveness, and due process of law.


    With that in mind, it is my pleasure to invite you to attend the Refugee Ball, which will take place on Tuesday, January 17, 2017 at the Sixth and I Historic Synagogue, located at 600 I Street, NW, Washington, DC 20001.


    Refugee, asylee, and immigrant vendors will provide food, music, and art. Also, immigration lawyers--including me--will be on hand to provide free consultations and “Know Your Rights” presentations. Events will start at 5:00 PM with the legal consults. Other activities will begin at 6:00 PM.


    The Ball is free and open to the public, but please let us know if you plan to attend by responding on our Facebook page (click here for the link). We will update the Facebook page with more information as we get closer to the date.

    Also, if you would like to support the Ball financially, please consider making a contribution (click here for the link), and spreading the word about this event. All proceeds will go towards the cost of the Ball, and any leftovers will be donated to local and international non-profits that support refugees.

    Thank you, and I hope to see you there.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. An Open Letter to My Friends at DHS and DOJ

    Former House Speaker, and Donald Trump adviser, Newt "The Brain" Gingrich recently made plain what Mr. Trump has been arguing for months: The new Administration is planning "straight-out war" against the federal bureaucracy. But in my time, there are two things that I've learned about ideological wars: (1) The casualties are flesh-and-blood human beings, and (2) Everyone involved thinks that G-d is on his side.
    "Sidekick to a bully" is not a job title many government lawyers relish.
    In this case, Mr. Gingrich was speaking specifically about the troubled Department of Veterans Affairs, which he accused of various sins amounting mostly to half-truths (or perhaps whole lies). But we've seen a pattern with Mr. Trump's appointments. For example. the new head of the Department of Energy wanted to eliminate that agency in 2012. The leader of the Environmental Protection Agency doubts human-influenced climate change and will likely prevent that organization from issuing regulations to protect public health. And the new Secretary of the Department of Housing and Urban Development will be Dr. Ben Carson, whose main qualification seems to be that he lives in a house.

    But the situation for the Departments of Justice and Homeland Security are a bit different, at least in terms of those agencies' oversight of our nation's immigration laws. In those cases, it's more likely that Mr. Trump will be ramping-up enforcement at the possible expense of other immigration functions (like processing immigration benefits).

    Senator Jeff Sessions will lead the DOJ as Attorney General. He is known for his opposition to immigration reform and his belief that legal immigration to the United States should be reduced. So how will Senator Sessions's appointment affect DOJ in terms of immigration enforcement? DOJ administers the nations Immigration Courts and the Board of Immigration Appeals ("BIA"), and (within some limits) interprets our immigration laws. As Attorney General, Mr. Sessions has the power to narrow precedents favorable to non-citizens. He can do this directly, by issuing Attorney-General opinions, which supersede decisions made by the BIA. He can also do it indirectly, by appointing ideologically like-minded Judges and BIA Members. DOJ also administers the Office of Immigration Litigation ("OIL"), which defends BIA decisions in the federal courts. Mr. Sessions could order OIL to take more hard-line stances, and he could push litigation that reflects his restrictonist viewpoint.

    How would this be different than what we have now? The atmosphere for aliens in immigration proceedings has never been easy. That's particularly true for aliens convicted of crimes. But at least in most cases, I have found that Judges, BIA Board Members, and OIL attorneys are reasonable, and do their best to follow the law. Sometimes that means deporting people who are very sympathetic; other times, it means allowing people to stay who they believe should be deported. The problem comes when we have DOJ attorneys who are more concerned with ideological ends than with due process. We saw this most clearly when Attorney General John Ashcroft purged liberal (or supposedly liberal) BIA Board Members at the beginning of the George W. Bush Administration. Perhaps we will see a similar reshuffling in the months ahead.


    For fair-minded attorneys, Judges, and Board Members at DOJ, that's a frightening prospect. Are their jobs in jeopardy? Will they be forced to take positions contrary to their conscious, or contrary to their interpretation of the law? Many immigration benefits--such as asylum--contain a discretionary element. Will the ability to exercise discretion be intolerably curtailed?


    It's still unclear whether attorneys and officers at the Department of Homeland Security will face the same potential dilemmas as their DOJ counterparts. The new Secretary for DHS will be retired Marine Corps General John Kelly, who is widely viewed as non-ideological. Under the DHS ambit are several agencies that impact immigration, including U.S. Immigration and Customs Enforcement ("ICE"), which is basically the immigration police and prosecutors, and U.S. Citizenship and Immigration Services ("USCIS"), which administers immigration benefits, including asylum. We have yet to learn who will lead these agencies, and probably the choices for those posts will have more effect on the officers and attorneys "in the trenches" than General Kelly, who is overseeing the entire agency.


    Currently, DHS attorneys, Asylum Officers, and ICE officers have a fair bit of discretion in handling cases, especially cases where the alien has no criminal record. DHS attorneys often can decide whether to keep an alien detained, they can offer prosecutorial discretion, and they can decide how aggressively to pursue an individual's deportation or whether to agree to relief. Asylum Officers also have a fair bit of discretion to determine credibility and decide on relief.


    The attorneys, officers, and Judges I know at DHS and DOJ are generally intelligent, caring individuals who do their best to follow and enforce the law without inflicting undo harm on individuals and families. They are aware of their power and their responsibilities, and they take their jobs seriously. Sometimes, I disagree with them on their interpretation of the law. Sometimes, I think their approach is unnecessarily aggressive. In some cases, we evaluate the merits of a case differently. While we do not always agree, I can see that they are performing an essential function by fairly enforcing our nation's immigration laws.


    In speaking to some DOJ and DHS attorneys and officers since the recent election, I have seen a certain level of demoralization. Some people have expressed to me their desire to leave government service. While these individuals respect and follow the law--even when the results are harsh--they are not ideological. They do not hate immigrants (or non-white people, or Muslims) and they do not want to enable or contribute to a system that they fear will become overtly hostile to immigrants that President Trump considers undesirable. I suppose if I have one word of advice for such people, it is this: Stay.


    If you are a government attorney or officer and you are thinking of leaving because you fear an overtly ideological Administration, you are exactly the type of person that we need to stay. As has often been the case in recent decades, an honest, competent bureaucracy is the bulwark against our sometimes extremist politics.


    It's likely that if you are a government employee who is sympathetic to non-citizens, your job will get more difficult, the atmosphere may become more hostile. It will be harder to "do the right thing" as you see it. Opportunities for promotions may become more limited. Nevertheless, I urge you to stay. We need you to help uphold the law and ensure due process for non-citizens and their families. To a large extent, our immigration system is as good or as bad as the people who administer the law. We need the good ones to stay.

    Originally posted on the Asylumist: www.Asylumist.com
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