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Jason Dzubow on Political Asylum

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  1. 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.
  2. 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
  3. The Easiest Office to Win Asylum, and Why You Shouldn't Apply There

    If you want to maximize your chances for winning asylum, where is the best place in the U.S. to apply?

    It's unfortunate that we even need to ask this question. In a perfect world, the approval rates for each Asylum Office would be about the same. But in the real world, approval rates vary--by quite a lot, it turns out.

    Lies, damned lies, and statistics: Which are these?
    Our team of mathematicians here at the Asylumist have been working hard to analyze the most recent data from the Asylum Office, and we've summarized our findings in the attached chart. You can see that the approval rate for the San Francisco office (76.5%) is significantly higher than for the other Asylum Offices. The next best offices are Arlington (51.8%) and Los Angeles (50.7%), followed by Chicago (38.3%), Miami (37.7%), and Newark (35.8%). The worst offices are Houston (27.6%) and New York (22.6%).

    First, a word about methodology: We used monthly statistical information from the Asylum Division Quarterly Stakeholder Meeting to calculate the percentages. USCIS posts this information four times per year, and you can see the latest posting here. We looked at the numbers from the most recently available six month period: April to September 2015. To determine the approval rate, we removed from the mix (technically, from the denominator) asylum denials based on no-shows--in other words, where the applicant herself never attended the interview.


    Just for fun, we added another column listing the length of delay before the interview at each office (as of February 2016 - one day, I will do an article about why the posted wait times are not good predictors of how long a new asylum applicant will wait for an interview). You can see that the Asylum Offices with the lowest grant rates (New York and Houston) also currently have the shortest waits for an interview (20 months and 21 months respectively). Perhaps there is a connection between grant rates and waiting periods, but I doubt it--the office with the highest grant rate (San Francisco) has the third shortest waiting time (25 months).


    Based on the above analysis, the savvy asylum seeker might conclude that the best way to maximize his chance for a grant is to live within the jurisdiction of the San Francisco Asylum Office, or as a second choice, the Arlington, Virginia or Los Angeles Asylum Offices (to see which Asylum Office has jurisdiction over your case, check the Asylum Office Locator). But I think such a conclusion assumes too much. I also think there are other factors worth considering besides grant rates and wait times. Let me explain.


    First, it's difficult to know what's behind the above numbers and how applicable they are to an individual case. Who is seeking asylum at each office? From which countries and for what reasons? Are applicants more likely to be represented by a lawyer (which increases the likelihood of a grant) at certain offices? Some types of cases are more difficult to win than others, and this might be reflected in the statistics. For example, supposedly the Houston office has a higher percentage of applicants fleeing persecution from criminal gangs in Central America. In general, such cases are difficult to win since applicants don't easily fit into a protected category under the asylum law. If we could eliminate Central American cases from the mix, perhaps the Houston office would have a higher grant rate. So does this mean that if you have a different type of asylum case (say, an Iraqi fleeing religious persecution), Houston might not be a bad place to apply? Maybe. At least it probably is not as bad as the overall approval rate suggests.


    Second, while USCIS provides limited information about why cases are denied, they do give us some information--most importantly, they provide the number of cases denied due to missed filing deadlines (asylum applicants are required to submit their applications within one year of arrival in the U.S. or meet an exception to this rule; otherwise, the Asylum Office will automatically deny the case and refer it to an Immigration Judge). For some reason, the New York office has a high percentage of "Filing Deadline Referrals." Roughly 35% of all referrals in NY are due to the filing deadline. In most other offices, less than 20% of cases are referred on this basis. If you remove such cases from the calculus, the overall grant rate in NY goes from 22% to over 30%. So does this mean that more people are filing late in New York, or does it mean that New York is less likely to find an exception to the one-year filing requirement? While I suspect it's the latter, we really don't know. But if you are filing your application in a timely manner, the New York office may not be as bad as the chart above indicates.


    The bottom line is, we don't know a whole lot about what's behind the Asylum Division's statistics, and without a better understanding of the situation, it is difficult to make predictions in an individual case.


    There's another unknown factor at play here as well: These cases are taking a long time, and given the relatively short tenure of each asylum officer (two or three years, I've heard), the approval rate at a given office may change by the time the interview date arrives. So a good office today may be less good tomorrow (or vice versa).


    Finally--and for me, this is the best argument against forum shopping--given the years-long waiting period before the interview, asylum seekers have got to live their lives. I often advise new clients that they should live as though they are going to win their cases. Why? Because it's impossible not to--how can you put your entire life on hold for two, three or more years while you wait for an asylum decision? In some things (reunification with family, certain job opportunities), you may have no choice, but to the extent possible, you need to live your life while you are waiting for a decision. This means you need to live where you have a job or go to school, or where you have the support of family members and friends. If you choose where to live based on the local Asylum Office approval rate, you may have a hard time surviving the wait.


    On the other hand, if all else is equal (or maybe if you just have a hankerin' for some Rice-A-Roni), San Francisco is probably not a bad place to apply.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. When Lawyers Lie

    The case of Detroit-area immigration lawyer David Wenger has been in the news lately. Mr. Wenger was recently sentenced to 18 months in prison for counseling his client to lie to the Immigration Court.
    "I didn't do it!" Why lie about something that you can't get away with?
    Mr. Wenger's client is a 45-year-old Albanian citizen who has lived in the U.S. since he was six months old. The client's family, including his daughter, live in the United States as well. Apparently, the client landed in removal proceedings due to a 2013 controlled-substance conviction, but the source of Mr. Wenger's troubles stem from the client's decades-old conviction for criminal sexual misconduct.


    It seems that Mr. Wenger feared that if the Immigration Judge became aware of the sexual misconduct conviction, the client would have been deported. Having witnessed the tragedy of deportation many times, and particularly the pain it causes to the children of the deported, Mr. Wenger took matters into his own hands and tried to cover up the old conviction. It didn't work.


    Now, Mr. Wenger is going to jail and the client--while still in the United States--faces an uncertain future.


    Mr. Wenger's tale has caused some buzz among my fellow immigration lawyers. Mostly, it is described as "sad," and certainly there is an undercurrent of sympathy for a man whose advocacy crossed a line that we, as lawyers, are trained to approach. I've known criminal defense lawyers, for example, who say that if you don't go to jail for contempt once in a while, you're not doing your job. And certainly there is an element of truth to this: When you are advocating for an individual against The Man, you have to use all the tools at your disposal and push the limits of the law to protect your client. That is our job--and our duty--as lawyers. But such zealous advocacy has inherent risks, as Mr. Wenger's story reminds us.


    So I suppose I understand Mr. Wenger's motivation to lie. But I do not understand how he thought he might get away with it in this particular case. The U.S. government keeps records of criminal convictions, and the DHS attorney in the case would likely have known about the old conviction. So even if you are not morally opposed to lying, I don't see the point of lying about something that the government knows already.


    The temptations faced by Mr. Wenger are amplified in my practice area--asylum--where the U.S. government rarely has independent evidence about the problems faced by asylum seekers overseas, and significant portions of most such cases depend on the client's own testimony. I've encountered this myself a few times when clients have asked me to help them lie ("Would my case be stronger if I said X?"). How to handle such a request?


    The easy answer, I suppose, is to tell the client to take a hike. That is not my approach. I am sympathetic to people fleeing persecution who do not understand the asylum system, and who think that lying is the only way to find safety (and who often come from places where lying to the government is necessary for survival). In many cases, such people need to be educated about the U.S. asylum system. When a client asks me to lie, I explain that as an attorney, I cannot misrepresent the truth. I also explain why lying will likely not help achieve the client's goal, and how we can present the actual case in a way that will succeed. Hopefully this is enough to convince the client to tell the truth.


    For individual clients, of course, this type of honesty sometimes has its drawbacks: Cases may be lost, people may be deported--possibly to their deaths, and families will be separated. Some lawyers find this price too high. If you believe your client will be deported to his death and you can save him by lying, perhaps the lie is justified. Mr. Wegner, no doubt, felt that he was doing the right thing for his Albanian client (though a review of Mr. Wegner's disciplinary record reveals that he has not always served the best interests of his clients). And there are certainly attorneys who believe that the ends justify the means. But I am not one of them.


    When all is said and done, I will not lie for a client. I don't think it is effective, and even if we get away with it in one case, I fear that it would hurt my credibility as a lawyer--and thus my ability to be an effective advocate--in all my other cases. I also feel that it damages the system, which hurts honest applicants.


    In the final analysis, even if we ignore his other disciplinary issues, it is difficult for me to feel too sorry for Mr. Wegner. While a lawyer's zealous representation of his client is admirable, the willingness to cheat corrodes our immigration system and ultimately harms the very people that lawyers like Mr. Wegner purport to help. For me, even the argument that lying is a necessary form of civil disobedience in an unjust system falls flat. Civil disobedience is about sitting at the lunch counter; not stealing the food.


    Despite all the imperfections of the immigration system, our primary job as lawyers is to work within that system to assist our clients. We also have a role to play in criticizing and improving the system. But when lawyers lie, we fail as both advocates and as reformers.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, fraud Add / Edit Tags
  5. Anti-Immigration Group Spies on Asylum Division, Lies About It

    Nayla Rush, a Senior Researcher at the anti-immigration Center for Immigration Studies, has apparently been spying on the USCIS Asylum Division - and lying about what she has overheard.
    I couldn't find a photo of Nayla Rush infiltrating the asylum meeting, but I assume it would look something like this.

    First, a bit of background: As you may know, the Center for Immigration Studies or CIS (not to be confused with USCIS - the United States Citizenship and Immigration Services) is a group that wants to restrict immigration to the United States. Their writers are usually intellectually honest, though not always. I often disagree with their policy positions, and I have written about them a few times (here, here, and here). They also occasionally write about me.


    Last week, I visited the CIS website and discovered Nayla Rush's post about attending the USCIS Asylum Division Quarterly Stakeholder Meeting on December 11, 2015. The meeting was for "Stakeholders" in the asylum system: Advocacy groups, lawyers, even--I suppose--people who want to restrict the asylum process. But the meeting is specifically not for the media. The invitation reads, "Note to media: This engagement is not for press purposes. Please contact USCIS Press Office... for any media inquiries."


    It just so happens that I also attended the meeting in question, which was led by the Asylum Division Director, John Lafferty. About 50 people were present, including USCIS staff, private lawyers (like me), and representatives of various organizations involved with asylum law.


    During the first part of the meeting, each person introduced himself and stated the name of his organization. If Ms. Rush introduced herself, I do not remember. But certainly she did not reveal that she was representing CIS - everyone there knows the anti-immigration group and her presence at the meeting would have raised some eyebrows.


    Ms. Rush also did not reveal that she was attending in her capacity as a journalist. Perhaps she hoped to discover some dirt or some secret conspiracy between USCIS and asylum advocates. Maybe she covertly recorded the meeting, Planned Parenthood-style, with the hope of exposing something nefarious. Apparently, she did not find anything too damning, but fear not--in the absence of evidence, you can always make stuff up.


    From the meeting, Ms. Rush claims to have learned that "Officers interview asylum seekers by phone in 60 percent of the cases (except for families who are already in detention centers)." In her piece, "Most Asylum Applicants Are Interviewed by Telephone. Feel Safer?", Ms. Rush notes that it's hard enough to assess an applicant's credibility, but if the officers cannot even look the applicant in the eye, fraudulent asylum seekers--including potentially dangerous people--can scam their way through the system. "Call me skeptical," she writes, "but I don't see how this subjective assessment [of asylum seeker credibility] can be obtained through a telephone conversation."


    So the premise of Ms. Rush's article is that 60% of asylum seekers are interviewed by phone. If this were true, it would be cause for concern. However, the actual number of asylum seekers interviewed by phone is more like 0%. That's zero. Zilch. Nada. None. In fact, every asylum applicant interviews in-person, face-to-face, with an Asylum Officer. So what is Ms. Rush talking about?


    My best guess is that she has confused (or deliberately conflated) asylum interviews and credible fear interviews ("CFI"). The purpose of an asylum interview is to determine whether an applicant may be granted asylum, and thus the legal ability to remain permanently in the U.S. The purpose of a CFI is to determine whether an applicant presents a prima facia case for asylum. If the applicant meets this minimal standard, she will then be sent to an Immigration Judge (or in the case of a minor, an Asylum Officer) to determine whether asylum should be granted. If the applicant fails the credible fear interview, she will be deported. Many credible fear applicants are interviewed by phone, but since this is only an initial evaluation of the case, and since the only purpose is to assess whether the person has articulated a fear of return to her country, credibility is not really a consideration. If the person "passes" the CFI and then presents her asylum case, she will have an in-person interview (or a trial) where credibility is carefully considered.


    From all this, it seems that Ms. Rush is either so unfamiliar with the asylum process that she confused two basic concepts (asylum and CFI), or she understands the asylum process and she is a big liar. My guess is that it's the latter. Why? Because the article is not the only instance of Ms. Rush's dishonesty when it comes to refugees.


    Take, for example, Ms. Rush's recent report on the UN's Role in U.S. Refugee Resettlement, where she claims that the "United States is entrusting the staff of the United Nations High Commissioner for Refugees (UNHCR) with the entire selection and pre-screening process of Syrian refugees eligible for resettlement in the United States" (the emphasis is mine). The implication is that the UN determines who comes to the U.S. as a refugee. This is completely false. The UN refers refugees to the U.S. government, which then independently screens them and performs background checks (I've written about this process here). Ms. Rush's fear-mongering and dishonesty about Syrian refugees suggests that her motivation is to score political points, regardless of the facts.


    Frankly, I am not particularly bothered by Ms. Rush attending the Asylum Division meeting under false pretenses and then writing about it. I happen to believe (like her, I think) that the system should be more transparent. What bothers me is that she would attend the meeting and then deliberately distort what she heard.


    As I have written before, there are legitimate arguments for limiting the number of refugees and asylum seekers we admit into the United States. We as a country should be discussing these issues, and organizations like CIS have an important role to play in that conversation. But when CIS distorts the facts in order to advance its argument, it impoverishes the debate and damages its own credibility. Hopefully, in the future, CIS and Ms. Rush will be more responsible and more honest as we continue to discuss this important topic.

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