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Jason Dzubow on Political Asylum

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  1. The Asylum Office Scheduling Bulletin, Explained (Sort of)

    The purpose of the Asylum Office Scheduling Bulletin ("AOSB") is to give asylum applicants "an estimate for when they might expect their interview to be scheduled." At best, though, it's a very rough estimate. The problem is that the AOSB tells only part of the story, and not even the most important part. Let me explain.
    For two bits, Madame Blavatsky can predict when your interview will be. And I'll bet she's more accurate than the AOSB.
    First, what is the AOSB? It is a chart that lists the eight main Asylum Offices. For each office, we can see the filing date of the cases that that office was interviewing in March 2016 (the most recent month listed on the chart). We can also see the two previous months (January and February 2016), which gives some idea about how quickly (or not) the office is moving through its case load.

    So, for example, if you look at the Arlington, Virginia Asylum Office, you will see that as of March 2016, it is interviewing people who filed their cases in October 2013. In January and February 2016, Arlington was interviewing people who filed their cases in September 2013. The Chicago office has made the most progress during this period, advancing from May to August 2013. San Francisco is also making steady progress, moving from January to March 2014. Other offices--Houston, Los Angeles, Miami--have moved not at all. But again, this is only part of the story.


    One thing the numbers do not tell you is that many of the cases filed prior to December 26, 2014 have already been interviewed. Extrapolating from our own case load, for example, I estimate that in my local Asylum Office (Arlington), approximately 60% of cases filed between October 2013 (the date listed on the AOSB) and December 2014 have already been interviewed. That's because there was a policy change on December 26, 2014 affecting how the Asylum Offices handle their cases.


    What happened is this: In the Good Old Days (and the dates for "the Good Old Days" differ depending on your Asylum Office), asylum cases were filed and interviewed relatively quickly. At my local office, most interviews took place two or three months after filing. Then, starting in 2012 or 2013, and continuing until today, the number of people arriving at our Southern border increased significantly. These migrants are mostly young people from El Salvador, Honduras, and Guatemala. They are fleeing violence and poverty. Some are attempting to reunite with family members already in the United States.


    At the border, the migrants ask for asylum. They are generally detained and subject to a credible fear interview ("CFI"). A CFI is an initial evaluation of eligibility for asylum. It is easier to "pass" a CFI than to win asylum, and a large majority of applicants pass the interview. They are then permitted to present their asylum cases to an Immigration Judge or an Asylum Officer. Applicants who do not pass the CFI are deported.


    This mass migration (often called "the surge") affects the affirmative asylum process in a few ways. First, CFIs are conducted by Asylum Officers. These are the same officers who conduct asylum interviews at the various Asylum Offices. If the officers are spending time on CFIs, they obviously are not spending time interviewing applicants at the Asylum Offices. And since most of the people arriving at the Southern border are detained, which costs the U.S. government money, CFIs get priority over the Asylum Officers' other work. Another way the surge has affected asylum seekers is that the Asylum Offices are prioritizing unaccompanied minors over other applicants. A large percentage of "surge" asylum applicants are minors, and thus their interviews receive priority over "regular" asylum seekers.


    When DHS diverted resources away from the Asylum Offices, affirmative cases started piling up. This began in our local office in 2013. About 60% of the case we filed during this period were interviewed in the normal time frame; the other 40% disappeared. The disappeared cases came to be known as "the backlog."


    Once it became apparent that the backlog was not going away, the Asylum Division changed its policy. Starting on December 26, 2014, cases would be interviewed on a first-in/first-out basis. This meant that the Asylum Offices started interviewing the cases in the order received, starting with the cases that had disappeared into the backlog. The AOSB was first published in about July 2015, and since then, there has not been a whole lot of progress. In Arlington, for example, since July 2015, the Asylum Office has only advanced from August to October 2013. Los Angeles is worse. Back in July 2015, they were interviewing cases filed in August 2011. Today, they are still interviewing cases filed in August 2011. Ugh.


    The U.S. government has been trying to improve the situation. The Asylum Division has hired more staff, including officers devoted exclusively to CFIs. We now have a system--limited to be sure--to process refugees in-country in Central America and bring them to the U.S. More controversially, we seem to have convinced Mexico to crack down on migrants passing through its territory, and we have prioritized the deportation of "surge" applicants, sometimes at the expense of our international obligations and due process of law. But if the AOSB provides any indication, these efforts have done little to reduce the backlog.


    The most important factor impacting movement at the Asylum Offices still appears to be the number of people arriving at the Southern border. As long as these numbers remain high, I am not optimistic that the Asylum Offices will make much progress on the backlog. And the prospects for improvement in the near-term do not look good: Preliminary reports from the border indicate that we can expect more asylum seekers than ever, as migrants seek to enter the U.S. before our increasingly-hostile political climate makes conditions for asylum seekers at the border even more dire.


    All these factors, and more (like, how cases and CFIs are distributed between Asylum Offices, how many Asylum Officers are detailed overseas to process refugees, etc.), contribute to movement on the AOSB. Because there are so many unpredictable factors at play, I don't see how the AOSB can claim any accuracy as a long-term predictor of when an individual asylum interview will be held. To me, it's kind of like looking at the weather report a month before your vacation. It doesn't tell you much, but since it's all you've got, you pay attention anyway.


    In the end, there is some value to the AOSB: Once you see that your asylum filing date is coming up, you know to prepare for your interview. Also, for applicants, I suppose it is helpful to know that they are not alone in Backlogistan. But as far as predicting interview dates, the AOSB is a mirage in the desert--it may encourage you to keep walking, but it tells you nothing about when you might get your next drink of water.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, backlog, delay Add / Edit Tags
  2. The Art of "No"

    In the field of immigration law, if you're a reasonably-priced attorney in private practice, or if you work for a non-profit, you probably do a volume business. You have to, to make a living. And if you hope to get your work done, maintain a social/family life, stay healthy, and keep your sanity, there is one word that you need to keep handy at all times. As you might have surmised from the title of this piece, that word is "No".
    If only saying "no" to clients was as easy as just saying no to drugs
    "Can I ask one quick question about my brother-in-law's visa?"

    - No.


    "My friend's lawyer said I can expedite my case if you just call the Asylum Office and ask them. Can you call them today?"


    - No.


    "I don't have an appointment, but I stopped by to talk to you about my case. It will only take a few minutes. Can I see you?"


    - No.


    "You already completed and filed my asylum application, but I've decided I want to leave the country and withdraw my case. Can I have a refund?"


    - No.


    As the asylum backlog has turned into an unpleasant version of the Never Ending Story (without a cute little boy named Bastian to save us), client demands have proliferated. This is not the clients' fault. It makes sense that they should turn to their attorneys with all their immigration questions (and their family member's immigration questions) (and their friends' immigration questions). While it's certainly understandable, it puts the attorney in a difficult position.


    In the good ol' days, before the backlog, most asylum cases lasted less than six month. Even the slow cases were usually resolved in a year or so. But now, it takes years just to get an interview; never mind the delays post-interview. This means that the number of "active" asylum cases has increased. In my office, for example, I always had one large filing cabinet, where I kept my cases. Now I have three, and I might need to get a fourth soon (if you have one to sell, let me know). I've gone from maybe 60 or 70 active asylum cases to over 300.


    With more numerous and longer-lasting cases, we lawyers have to spend much more time responding to our clients' queries. Most of my clients are not particularly high-maintenance people, but even if they call once a month, and it takes me five minutes per call, that's 1,500 minutes--or 25 hours--per month. That's time I can't spend working on other client matters, meeting deadlines or taking my traditional three-martini lunch. Indeed, if I was less protective of my time, I could spend all day addressing client questions, and no work would ever get done.


    One way to turn these long-term cases in the lawyer's favor is to bill the client for the lawyer's time. That way, every five minute call translates into income. Many attorneys do that, but I suspect few lawyers specializing in asylum bill their clients this way, and it's not how I do things. I hate keeping track of such little periods of time, and I hate nickel-and-diming the clients. They don't much like it either.


    The alternatives are not much better. Either the lawyer can say "no" to his clients, or he can go crazy trying to answer all their questions.


    In my practice, I try to at least say "no" gracefully:


    "Can I ask one quick question about my brother-in-law's visa?"


    - I'm sorry, I can't answer questions that are not related to my clients' cases. If he wants to come in for a consultation, he is welcome.


    "My friend's lawyer said I can expedite my case if you just call the Asylum Office and ask them. Can you call them today?"


    - Actually, it does not work that way. I can email you a document explaining the expedite process.


    "I don't have an appointment, but I stopped by to talk to you about my case. It will only take a few minutes. Can I see you?"


    - Sorry, I have a deadline and I cannot meet right now. If you talk to my assistant, she can schedule an appointment for you.


    "You already completed and filed my asylum application, but I've decided I want to leave the country and withdraw my case. Can I have a refund?"


    - Hell no! Get outta here before I call ICE and have you deported!


    OK, that last one is not exactly how I would respond (and the subject of refunds is probably worth its own blog post one of these days), but you get the idea. You can say "no" and be protective of your time, at least to a large extent, while still helping your clients (though maybe on your time; not theirs).


    And obviously there are real emergencies when the client does need advice immediately, but I find that these situations are rare. Indeed, many client "emergencies" are not urgent at all--the client just wants to know the answer to a run-of-the-mill question, and she wants to know it now. I usually ask the client to email me the basic details of the emergency, so I can decide for myself how urgently I am needed.


    As with so many things in legal practice--and in life--the key here is balance. We need to be responsive to our clients, but we also need to protect our own time, so we can get our work done. Learning to say "no" is not always easy, and for me at least, it does not come naturally. But saying "no" in a respectful way is an essential skill for all immigration lawyers.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. The Great S-Visa Hoax

    The S visa--colloquially known as the "snitch" visa--is a visa available for aliens who cooperate with law enforcement officers. The S visa is a non-immigrant visa, but it can lead to a green card once "the individual has completed the terms and conditions of his or her S classification." "Only a federal or state law enforcement agency or a U.S. Attorney’s office may submit a request for permanent residence as an S non-immigrant on behalf of a witness or informant."
    The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).
    In other words, when an alien cooperates with the government in a criminal investigation, the government can apply for the alien's lawful permanent residency--the alien himself cannot independently apply for the green card.


    The number of S visas available nationwide is quite limited. According to the Justice Department, 200 visas are available each fiscal year for "aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year [are available] for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State's rewards program."


    While the visa is rarely granted, it seems to be regularly promised. The result: Many aliens who cooperate with law enforcement expect to receive an S visa, only to be left with nothing. I've recently witnessed this phenomena in a few of my own cases.


    In one case, a young women was enlisted by her boyfriend to transport heroin from her country to the U.S. She was captured on arrival and immediately cooperated with American law enforcement. Thanks to her assistance, several drug traffickers were arrested and prosecuted. In the course of the criminal investigation, law enforcement officers promised her an S visa. Once the investigation was complete, the government failed to deliver the S visa. My client was eventually released from jail, married, and started a family. DHS left her alone for a while, but eventually placed her into removal proceedings. She now fears (quite reasonably) that the drug traffickers she informed on will seek revenge against her if she returns to her country. We applied for deferral of removal under the Convention Against Torture (the only relief she was eligible for after her conviction). However, because she was such a low-level member of the conspiracy, she was unable to identify specifically who might harm her in her country. DHS fought hard to have her deported, and the Immigration Judge ultimately found that we could not demonstrate a more-likely-than-not probability of torture, so she now faces deportation. What particularly bothers me about this case is that my client's cooperation led directly to her fear of harm, but the U.S. government didn't care. When they got what they wanted from her, the law enforcement agents dropped her like yesterday's news.


    In a second case, my client discovered that his attorney was operating a scheme to file fraudulent employment-based immigration petitions and false asylum claims (and no, I was not his attorney at the time - sheesh). He reported the fraud to law enforcement and actively participated in the investigation. In the end, the attorney was sentenced to prison and disbarred. Throughout the investigation, DHS and the FBI repeatedly--and in writing--promised the client an S visa and told him that the visa was being processed. Once the investigation ended, law enforcement suddenly changed their mind and informed my client that they would not pursue an S visa for him. The client had a legitimate claim for asylum, but he failed to file a case because he was relying on the U.S. government's promise of an S visa. As a result, he missed the one-year filing deadline to submit his asylum application (an asylum applicant must file his case within one year of arrival in the U.S. or meet an exception to the one-year filing requirement; otherwise, he is ineligible for asylum). We litigated the case in court. In the end, the Immigration Judge denied asylum because the client had not filed within one year of arrival. The Judge found that reliance on the government's promise of an S visa did not qualify as an exception to the one-year bar. Instead he granted my client withholding of removal, a less-desirable form of relief.


    In both these cases, the government promised something, my clients relied on the promise, and the government failed to deliver. I understand the government's need to obtain cooperation from witnesses, even to the extent that government agents lie to witnesses to secure their assistance. However, in the case of the S visa, some cooperating witnesses (like my clients) face real harm--including possible persecution or death in the home country--when the government breaks its promise.


    So what can be done?


    It seems to me that any alien who relies on the goodwill of the government in an S visa case is being taken for a fool. The offer of an S visa is not enough--cooperating witnesses need an attorney to press the government to keep its word. And this is not something that can be done after the criminal investigation is complete. Once the government gets what it wants (i.e., cooperation), there is nothing to prevent it from reneging on its promise.


    Aliens with potential asylum claims are particularly vulnerable. For them, I would want a letter from the ICE Office of the Chief Counsel agreeing that the S-visa process constitutes "exceptional circumstances" excusing the one-year asylum bar. That way, in the (likely) event that the S visa does not come through, at least the alien will not be barred from seeking asylum because she missed a deadline.


    In short, if law enforcement officers promise you an S visa, you should understand that in many cases, they will not follow through with their promise. But if you take steps to compel the government to issue the S visa, and you have a back-up plan in the event that the S visa does not come through, you will maximize the chance that your cooperation will lead somewhere other than a dead end.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, s visa Add / Edit Tags
  4. Trump Campaign's Law Firm Represents Muslims, Mexicans, Criminal Aliens

    Donald Trump--who famously declared his intention to ban Muslims from coming to the United States, and who called Mexican migrants "rapists"-- is represented in his presidential campaign by a law firm whose pro bono clients include Muslims and Mexicans, as well as many other immigrants and asylum seekers.
    Don McGahn: Working hard to ensure that the asylum seekers represented by his law firm colleagues will face discrimination and deportation.
    To be sure, all 2,400+ attorneys at Jones Day do not support Mr. Trump, and many have been quite vocal (at least anonymously) about their opposition to the candidate and their firm's representation of him. It also seems that the lead attorney for the Trump campaign, Donald "Don" McGahn II, has been under some pressure to separate himself from the firm. However, at least for now, Jones Day seems to be all in for the Republican nominee.


    Given it's support for the candidate, perhaps it's a bit ironic that Jones Day has spent considerable money and pro bono time representing the very people that Mr. Trump seeks to ban from our country. Indeed, Jones Day has been recognized for its service by a number of leading immigrant-advocacy groups, including Human Rights First, the National Immigrant Justice Center, Tahirih Justice Center, the Lawyers' Committee for Civil Rights Asylum Project, Immigration Equality, and the Capital Area Immigrants' Rights Coalition. These organizations represent immigrants and asylum seekers throughout the country. Many of their clients are detained in ICE custody. Some are criminals. Others are (gasp!) Muslim. The work of these organizations has helped save thousands of lives, and the support of firms like Jones Day is integral to their efforts.


    And it's not just organizational support. Aside from fundraising, a perusal of the firm's recent pro bono successes reveals that Jones Day attorneys have directly represented Muslim, Mexican, and Central American asylum seekers, among many others. The firm has also represented criminal aliens in their quest to remain in the United States.


    For example, in March 2016, three attorneys from the Jones Day Chicago office won a victory in the Ninth Circuit for a Salvadoran man convicted of perjury. As a result of this success, the man has an opportunity to present his case for relief to the Immigration Judge, and he now has a chance to stay in the United States with his wife and son. The firm also successfully represented a gay man from Jamaica who received relief under the Torture Convention (most likely, he was ineligible for asylum due to a criminal conviction), an Afghan man convicted of assault against a police officer, and a Mexican citizen who was charged with procuring his admission to the U.S. by fraud.


    In addition to its criminal-immigration work, the firm has obtained asylum for a Muslim refugee from Somalia, a Muslim refugee from Iraq, and many other clients from majority-Muslim countries, including a woman from Mali, a family from Kyrgyzstan, a man from Turkey, a family from Iran, a woman and her son from Iraq, and a man from Yemen (the firm's website does not specify whether these clients are Muslim, but it seems likely that many are).


    In fact, the firm has an entire webpage devoted to its pro bono asylum and immigration activities. Jones Day is rightly proud of this work--the firm has assisted scores of asylum seekers and immigrants. It has won many cases and has represented aliens in precedent-setting litigation before the federal appellate courts and the U.S. Supreme Court. The firm is also rightly proud of its support for various non-profits, which help thousands of foreign nationals and their families. But how do these effort squares with the firm's representation of Mr. Trump, whose central message is anti-Muslim and anti-immigrant?


    It seems pretty clear that there is no ethical conflict in terms of the Rules of Professional Responsibility that lawyers must follow, and I have no doubt that the firm can competently represent both Mr. Trump and its pro bono clients. However, it does seem to me that representing the Republican nominee creates a real moral conflict for Jones Day.


    From my observation, big-firm attorney who represent asylum seekers and immigrants pour their hearts and soles into the cases. They often become friendly with their clients and they are heavily invested in the case outcomes. How would it feel to devote yourself to such a case, only to have your firm's most high-profile client denigrate your efforts?


    I am not a Jones Day attorney. I am not even a big-firm attorney. Never have been; probably never will be. But it seems to me that the character of a firm is important. That character is defined by the work the firm does--the paid work, and perhaps even more so, the pro bono work, which represents the firm's core values. Mr. Trump's campaign is diametrically opposed to the values that underpin much of Jones Day's pro bono work, and I do not see how these two paths can be morally reconciled. I also do not see how the firm can maintain its integrity by helping needy immigrants at the same time it is working to elect a president who is a bigot and a xenophobe.


    Abraham Lincoln once observed that a house divided against itself cannot stand. I wonder: Can a law firm?

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: jones day, trump Add / Edit Tags
  5. The Philosophy Behind the Asylum Affidavit

    If you ask three lawyers how to write an asylum affidavit, you're likely to get three (or more) opinions.

    An applicant's affidavit is the heart of her asylum case. It explains who she is, what happened to her, and why she needs protection. It's also an opportunity to address weak points in the case and to mitigate inconsistencies that may have come up in prior encounters with U.S. government officials.

    The debate about whether bigger is better goes all the way back to Affidavit and Goliath.
    Given how important it is, it's not surprising that different lawyers have different ideas about how to write a good affidavit. Some lawyers write long, very detailed affidavits. Others write short, perfunctory affidavits or do not write affidavits at all. Most of us--including me--fall somewhere in the middle.

    There's probably no "right" answer here, but for me, at least, the arguments for a detailed--but not too detailed--affidavit are the most convincing.


    One problem with providing a lot of detail in an affidavit is that it creates more opportunities for inconsistencies: If there are more facts in the affidavit, the applicant has more to remember. For example, if the written statement indicates that the applicant ate peppered tuna with Nicoise salad before he was arrested, he better say that he ate peppered tuna with Nicoise salad when he testifies. Otherwise, the adjudicator might take the inconsistency as a lie, which could cause the applicant to lose his case.


    Taken to an extreme, the concern about consistency between the written and oral testimony might suggest that the best approach is a less-detailed affidavit, or even that no affidavit is needed at all. From the attorney's point of view, this would be nice, since the affidavit represents a large portion of the work we do. And it's always convenient when the best interest of the client (avoiding inconsistencies) and the best interest of the lawyer (laziness) are aligned.


    However, I think there is a major risk involved with using a minimal (or non-existent) affidavit. First, under the REAL ID Act, an applicant is required to submit evidence when it is available. Typically, this consists of letters attesting to the persecution or other aspects of the case, medical reports, police records, and country condition information. Many of these documents will include dates (for example, a letter might indicate that the applicant was arrested on May 15, 2010) or other details. It is important that the applicant herself is aware of all these dates and details, and that her testimony is consist with them. Writing an affidavit, and having the applicant read it, is one way to help ensure consistency between the applicant's testimony and her supporting evidence.


    Also, the affidavit is useful for ensuring consistency between all the different pieces of evidence. Instead of comparing each letter to every other letter, you need only compare each letter to the affidavit. As long as every document is consistent with the affidavit, every document should be consistent with every other document. And if everything is consistent, it bolsters the applicant's credibility.


    I suppose you could write out the affidavit to help the applicant with his story and to help ensure consistency, but then not give the affidavit to the Asylum Officer or Immigration Judge. In this way, you would gain the benefits of having an affidavit while avoiding the risk of inconsistencies created by submitting the affidavit. But I'm not a fan of this approach, as I think the affidavit benefits the decision-maker in several ways. For one thing, it gives the decision-maker a detailed understanding of the case, which, if presented correctly, should go a long way towards producing a successful outcome.


    Second, it allows the applicant to point out and mitigate weak points in his case. Most Asylum Officers and Immigration Judges are pretty smart, and they're experienced enough to hone in on problems in a case. If the problems can be overcome and explained in the affidavit, it will help satisfy the decision-maker before she even meets the applicant. This will allow the decision-maker to focus on the portions of the case that you want to emphasize.


    In addition, in court, an applicant's oral testimony is often incomplete. Court testimony is commonly truncated to save time (especially where the Immigration Judge and DHS attorney are already familiar with the story from the affidavit and thus do not need to hear the applicant repeat his entire tale). Should the application for asylum be denied, the affidavit is useful on appeal, and many lawyers--including yours truly--have used affidavit testimony to help win an appeal with the Board of Immigration Appeals or the federal circuit court.


    So for all these reasons, I think a comprehensive affidavit is beneficial to the case. But of course, it is possible to include too much detail, which can trip up an applicant. The trick is to find the balance between providing the necessary information to convince the decision-maker and to humanize the client, but not so much information that the client can't keep track of it all and the legally-relevant facts become obscured by irrelevant detail. Enough, but not too much. It's an art, not a science, and with experience, each lawyer develops a style that works for his clients and hopefully helps achieve the clients' goals.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: affidavit, asylum Add / Edit Tags
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