ILW.COM - the immigration portal Immigration Daily

Home Page

Immigration Daily


Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW

VIP Network




Connect to us

Make us Homepage



Immigration Daily

Chinese Immig. Daily

The leading
immigration law
publisher - over
50000 pages of
free information!
© 1995-
Immigration LLC.

View RSS Feed

Jason Dzubow on Political Asylum


  1. The One Year Bar and LGBT Asylum Claims

    Richard Kelley is the Legal Program Coordinator for DC Center Global, an organization focused on supporting LGBTQI asylum seekers in Washington, DC. Most recently, Richard was a Senior Associate at the DC Affordable Law Firm, practicing immigration and family law. He is currently an associate at DLA Piper (USA). His full biography can be found here.

    Contact Richard Kelley at

    Richard Kelley

    In 1996, the United States Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which fundamentally changed the landscape of asylum law. Most notably, IIRIRA created a new requirement that those entering the country had to apply for asylum within one year of arriving in the United States. This one-year bar has created exceptional challenges for individuals seeking asylum and has had a notable impact on LGBTQI asylum seekers in particular.

    LGBTQI asylum seekers may miss this rigid one year deadline for several reasons: Insecurity about, discomfort with, or lack of openness about their identity; fear of being identified as LGBTQI or being “outed” as LGBTQI in their home country or in the immigrant diaspora within the United States; immense emotional and psychological trauma caused by experiences related to their LGBTQI status; or even lack of awareness that they can pursue asylum based on LGBTQI status. Individuals can often find themselves still exploring whether to apply for asylum based on sexual orientation even after one year has passed.

    Those asylum seekers who are aware of the one-year bar may not know that it is not absolute. There are two ways that an asylum seeker can overcome the one year bar to asylum: (1) the existence of a changed circumstance which materially affects the applicant’s eligibility for asylum, or (2) an extraordinary circumstance related to the delay in filing the application within the first year of entry. If an asylum seeker is able to demonstrate that he or she falls into one of these two exceptions “to the satisfaction of the asylum officer,” the applicant must then show that the application was filed within a “reasonable period of time” after the changed or extraordinary circumstance. See INA § 208(a)(2)(D); 8 C.F.R. § 208.4(a).

    What can be a change in circumstance?

    If asylum seekers can show “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum,” then they will only have to show that they applied within a reasonable period of time after the change in circumstance. The regulations indicate that a change in circumstance may include changes in conditions of the home country; changes in the applicant’s circumstances (including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution); or, if the applicant is a dependent in another person’s pending asylum application, the loss of the spousal or parent-child relationship. See 8 C.F.R. § 208.4(a)(4).

    For LGBTQI asylum seekers, this can take many forms. For example, if an asylum seeker’s home country recently passed legislation that criminalized same-sex relationships or same-sex advocacy, or otherwise targets LGBTQI individuals, this could qualify as a change in circumstance. Additionally, a major change in how the country, including its police force, treats LGBTQI individuals could be a change in conditions at home. Unfortunately, many countries have had discriminatory laws on the books for years, even decades. Some laws banning same-sex relationships are holdovers from colonial rule. Much more likely for asylum seekers is a change in personal circumstances. Potential changes in circumstance could include being “outed” as LGBTQI at home, getting actively involved in LGBTQI advocacy groups, marrying a same-sex partner, or for transgender individuals, going through transition efforts, particularly gender-affirming surgery. The important thing for asylum seekers to understand is that it is critical to explain how this change in circumstance materially affects one’s eligibility for asylum. Or stated differently, why does this new event create a reasonable fear of persecution that did not exist prior to the event occurring?

    What might be an extraordinary circumstance?

    A second option for asylum seekers who are not applying within one year of their entry into the United States is to demonstrate that there is an extraordinary circumstance related to the delay in filing the application. The regulations suggest several potential extraordinary circumstances that could justify a delay in filing, including serious illness or mental or physical disability, legal disability, ineffective assistance of counsel, maintenance of Temporary Protected Status or another lawful status, or a technical error. This list provided in the regulations, like the list of changes in circumstance, is not exhaustive. See 8 CFR §208.4(a)(5).

    LGBTQI asylum seekers can find themselves in situations where they may be able to demonstrate extraordinary circumstances related to their delay in filing. Perhaps the biggest group of asylum seekers who miss the one-year deadline are individuals who come to the United States on student visas or other temporary visas, and during their time in the U.S. either come out publicly or engage in advocacy around LGBTQI issues that subsequently creates a reasonable fear of returning home. In addition, an individual who enters the country as a minor (under the age of 18) may be able to apply because of legal disability.

    Many LGBTQI asylum seekers may also have experienced trauma in their home country due to their identity. Some advocates have argued successfully that this is an extraordinary circumstance that justifies an application outside of the first year. Matter of J-A-, A XXX-XXX-234 (Arlington Immigration Court, April 27, 2012), was an important step forward in this area. The advocates in Matter of J-A- successfully argued that extreme sexual and physical violence against J-A- because of his sexual orientation caused extreme and chronic PTSD, which justified his late application (nearly 10 years after his entry into the United States). This, combined with the fact that he entered the U.S. as a legal minor, led Judge Bryant of the Arlington Immigration Court to conclude that there was an extraordinary circumstance justifying the late filing. But it is important to note that arguments relying on PTSD or other mental health conditions are not always successful. However, rulings like the one in Matter of J-A- give hope that the law might actually catch up with the reality of the psychological impact caused by severe persecution based on LGBTQI identity. Again, the important thing for asylum seekers to focus on here is how the extraordinary circumstance directly caused the delay in filing.

    What is a reasonable period of time?

    If asylum seekers are able to show that there has been a change in circumstance or an extraordinary circumstance, they are permitted to file the asylum application within a reasonable period of time. There is no specified reasonable time in IIRIRA, but the simple answer is that one should file as soon as possible.

    So, while the one year bar can be concerning to asylum seekers and has been particularly harmful to LGBTQI asylum seekers, there is hope. While other options, like Withholding of Removal, may be available to individuals outside the one year bar, it is incumbent upon asylum seekers and advocates to make every effort to help the adjudicator understand the complexities faced by the LGBTQI community and to build effective justifications for filing for asylum outside the one-year period. The exceptions provide some hope to an otherwise devastating change in the immigration law.

    Originally posted on the Asylumist:
    Tags: asylum, lgbt Add / Edit Tags
  2. The Asylum Office Is Getting Tougher (Probably)

    Last week, the Asylum Division changed the way it processes cases. Instead of interviewing asylum cases in the order they were filed (first-in, first-out), cases will now be interviewed on a last-in, first-out or LI-FO basis. We've been learning more about the reasons for this change, and I want to share what I've heard here. But before I get to that, I want to discuss another important change that has recently become apparent: The dramatic drop in grant rates for cases at most asylum offices.

    The new Asylum Officer training regimen.

    The below chart compares asylum approval rates at the various asylum offices for the months of December 2016 and December 2017 (the most recent month when data is available). Admittedly, this is a snapshot of events, and an imperfect snapshot at that. Nevertheless, I think it illustrates a larger trend.

    The left number in each column represents the number of cases approved during the month. The number on the right is the number of cases completed. The percentage shows the percentage of cases approved in that office. So in December 2016, Arlington approved 89 cases out of 317 completed, meaning that 28% of completed cases were approved. Conversely, 72% of applicants were denied asylum or referred to court, but that includes people who failed to show up for their interview, so the denial rate for people who actually appear is not as bad as it seems from the chart (as they say, in life, eighty percent of success is showing up). With that out of the way, here are the stats:

    Asylum Office December 2016 December 2017
    Arlington 89/317 (28%) 80/276 (29%)
    Boston 45/108 (42%) 27/168 (16%)
    Chicago 75/186 (40%) 80/362 (22%)
    Houston 28/119 (24%) 58/437 (13%)
    Los Angeles 258/528 (49%) 389/1195 (33%)
    Miami 73/243 (30%) 76/650 (12%)
    Newark 118/358 (33%) 155/866 (18%)
    New York 103/496 (21%) 87/858 (10%)
    New Orleans 41/83 (49%) 83/188 (44%)
    San Francisco 219/303 (72%) 196/429 (46%)
    United States 1049/2741 (38.3%) 1231/5429 (22.7%)

    So you can see that asylum grant rates are pretty dramatically down at most offices, and that for the entire country, they are down about 40% (from 38.3% to 22.7%) (you can see the source for these statistics here for 2016 and here for 2017). While the various grant rates could represent anomalies, they comport with larger trends, as shown in the next chart, which lists grant rates for the U.S. as a whole over the last few years:

    Fiscal Year Asylum Grant Rate
    FY 2015 45%
    FY 2016 41%
    FY 2017 34%
    FY 2018 26%

    You can see from this chart that asylum grant rates have been dropping since FY 2015 (which began on October 1, 2014), but the decrease is more pronounced in the two most recent fiscal years (and of course, we are only a few months into FY 2018). Further, if the December 2017 data is any indicator, the grant rate is continuing to drop.

    My first question--and be forewarned, I don't really intend to answer these questions--is, Why is this happening? The temptation is to attribute the drop to President Trump's anti-immigrant agenda, but I don't find that explanation very convincing. First, grant rates began to fall long before Mr. Trump took office. Second, even after he was sworn in--in the second quarter of FY 2017--it takes months to implement new policies. Most asylum officers were hired pre-Trump, and that was especially true in FY 2017, since it takes time to hire and train new people. In addition, I have not observed any real changes in the pool of asylum officers that I meet (then again, the grant rate at my local office--Arlington--seems to have held steady, at least as illustrated in the first chart).

    So if it's not President Trump, what's going on? One possibility--and I suspect this is the explanation that the Asylum Division favors--is that a higher portion of cases interviewed in recent years are meritless. In other words, as the backlog grew and delays became longer, people with weak cases were incentivized to file for asylum in order to get their employment authorization document ("EAD"). These people knew that their cases would take years, and so they filed mostly to obtain some status here and work legally. But now, as more and more of these people are reaching the interview stage, their cases are being denied. There is some evidence for this theory--according to the Asylum Division, of the 314,000 backlogged asylum cases, 50,000+ applications were filed more than 10 years after the applicant entered the United States. For various reasons, such cases are more likely to be meritless, and--even if they are legitimate--they are more likely to be denied due to the one year asylum filing deadline.

    If this second explanation is correct, then perhaps there will be a silver lining to the recent change in how asylum cases are interviewed. If people get faster interviews, maybe fewer meritless applicants will seek asylum.

    Whether or not this will work, we shall see. But a test is soon coming (probably). The Trump Administration has ended TPS (Temporary Protected Status) for El Salvador and other countries. It has also terminated the DACA program. This means that in the absence of a legislative fix, hundreds of thousands of people will have no way to avoid deportation other than to go into hiding or to seek asylum. You can bet that many of them will seek asylum (and indeed, given the violent countries from whence they came, many have legitimate reasons to fear return).

    We know from a recent meeting at the Arlington Asylum Office that the end of TPS and DACA were two reasons for changing to the FI-LO process. But whether this new procedure will stem the potential tidal wave of applications, I have my doubts.

    All this brings us to the final question (for today)--What does this mean for asylum seekers? As usual, I don't have a good answer. People filing now can probably expect an interview soon and should submit all evidence so they are ready for the interview. However, if volume is too high, not everyone will get an interview. My impression is that if the interview is not scheduled within 21 days of receiving the receipt, then the case will "disappear" and will only be interviewed once the Asylum Office starts working on backlogged cases. It's likely that some cases will disappear, since the number of people seeking asylum is still out-pacing the government's ability to interview applicants. Also, there are (once again) increasing numbers of asylum seekers arriving at the U.S./Mexico border, and the Asylum Offices must devote resources to those cases as well.

    Local offices control the expedite process and the short list, and it seems that most offices will continue to offer those options. However, the Asylum Division is expecting fewer "no shows" with the new system, and so there may be less slots available for expedited or short-listed cases.

    Finally, under the pre-December 2014 system, when an asylum case was sent to Immigration Court, the judge would schedule a quick hearing date for any applicant who had not yet received his EAD (in an effort to dissuade meritless applicants from seeking asylum merely to get an EAD). It looks like the Immigration Courts will again be doing this same thing, and so if you have a fast asylum interview and you are referred to court, you should be prepared for a fast hearing date in court.

    For what it's worth, my impression is that the Asylum Division is well aware of the pain it will inflict by re-ordering how asylum cases are interviewed. But they are looking at the "big picture" and they hope that changing to a FI-LO system will reduce meritless applications and ultimately benefit legitimate asylum seekers. I hope they are correct, but until then, I fear things will be worse before they get better.

    Originally posted on the Asylumist:
    Tags: asylum, backlog Add / Edit Tags
  3. Bye Bye Scheduling Bulletin, Hello Chaos!

    By now, you may have heard that the Asylum Division--in a surprise move--has changed the order in which cases will be interviewed. This means that new cases, filed after January 29, 2018, will be interviewed before older, pending cases.

    "Sorry, the front of the line is now over there... I guess..."

    To understand what's happening, let's review a bit of history. Since the mid-1990s, when an asylum case was submitted, the Asylum Office attempted to interview the applicant within a couple months. But as the number of applicants increased, the Asylum Office was less able to handle the volume. Further, starting in maybe 2011 or 2012, large number of asylum seekers began arriving at the U.S./Mexico border and requesting protection (many of these applicants were "unaccompanied minors" - i.e., children without parents - whose cases received priority). In addition to their normal workload, Asylum Officers were assigned to assess these border cases and administer a credible fear interview (an initial evaluation of asylum eligibility). All this resulted in an inability to keep up with affirmative asylum applications. The result was The Backlog.

    In my part of the country, the backlog began in probably 2012. We would mail asylum cases as normal. Some applicants would be interviewed within two months; other cases disappeared. Of the cases we mailed, about 60% were interviewed and 40% disappeared.

    Although the Asylum Division recognized the problem, they were reluctant to change the way they processed cases. Their fear was that if they interviewed cases in the order received, all cases would move slowly. This would create an incentive for more people to submit fraudulent applications, knowing that their interview would be delayed and that they could remain in the United States for years with a work permit (150 days after she files for asylum, an applicant can apply for an employment authorization document). The problem, of course, was that cases in the backlog (the ones that "disappeared") would never be adjudicated, and would remain in limbo forever.

    Then, in December 2014, the Asylum Division decided to try a new approach: They would interview the oldest cases first. In a sense, this was more fair, as it gave people with "disappeared" cases a chance for an interview. At about the same time, the Asylum Division created the Affirmative Asylum Scheduling Bulletin. Now, for each asylum office, we could see who was being interviewed based on the date the application was filed. This at least gave applicants some sense of how their cases were progressing.

    Whether the new system worked, or whether it encouraged fraudulent applicants who only wanted work permits, I do not know. I do know that cases have been moving very slowly since December 2014. I believe this is largely due to the prioritization of cases--unaccompanied minors and credible fear interviews received priority over "regular" asylum applicants, and since there were a lot of these, the Asylum Office has been crawling through its backlog of regular cases. We could see what was happening (or not happening) on the Affirmative Asylum Scheduling Bulletin.

    Enter, the Trump Administration, which views asylum seekers as fraudsters. USCIS (which oversees the Asylum Division) announced the change in policy yesterday, and the change is retroactive--all cases filed on or after January 29, 2018 will (supposedly) be interviewed within 21 days. There is, of course, a caveat: "Workload priorities related to border enforcement may affect our ability to schedule all new applications for an interview within 21 days," says USCIS.

    According to USCIS, the new priorities are as follows:

    • First priority: Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS.
    • Second priority: Applications that have been pending 21 days or less.
    • Third priority: All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings

    From this, it appears that unaccompanied minors will no longer be a priority, which may make things faster for "regular" applicants. Also, it appears that the system for requesting expedited interviews will remain in place: "Asylum office directors may consider, on a case-by-case basis, an urgent request to be scheduled for an interview outside of the priority order listed above" (I previously wrote about expediting affirmative asylum cases here). Finally, since cases are being interviewed on a "last in, first out" basis, there is no longer a need for the Asylum Office Scheduling Bulletin, and so USCIS has eliminated it (though wouldn't it be nice if they used that website to provided updated information about what they are doing?).

    USCIS has made the reasons for the change pretty clear: "Returning to a 'last in, first out' interview schedule will allow USCIS to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings." Presumably, it will also allow legitimate cases to be granted more quickly, which may be good news for people planning to file for asylum in the near future.

    Rumor has it that other changes are coming to the asylum system, but what they are, we do not yet know. Given the government's view that many asylum seekers are fraudsters, I can't imagine that such changes--if any--will be positive, but we shall see.

    There is a lot to say about this new change, but for now, I want to urge people to remain cautious. We will have to see how this plays out in the coming weeks and months. Obviously, if you are a new asylum seeker, or if you filed recently, you need to complete your entire case now, so that you are ready if an interview is scheduled quickly. If you have a case in the backlog, and are now losing hope of ever receiving an interview, you should try to be patient--it may be that because unaccompanied minors are no longer a priority, and because fewer asylum seekers are arriving at the Southern border, cases will begin moving more quickly. Only time will tell, and if I have any news, I will try to post it here.

    Originally posted on the Asylumist:
    Tags: asylum, backlog Add / Edit Tags
  4. A Poetic Response to the State of Our Union

    Last night was the State of the Union address, a speech presidents give before Congress each year to assess where our country has been and where we are going. President Trump's speech highlighted one of his favorite themes--the dangers to our economy and our security posed by non-citizens.

    I recently came across a poem by Brian Bilston, which eloquently rebuts the President's anti-immigrant and anti-refugee talking points, and so I wanted to share it here. If you would like to learn more about Mr. Bilston, check out his website. Without further ado, enjoy--


    They have no need of our help
    So do not tell me
    These haggard faces could belong to you or me
    Should life have dealt a different hand
    We need to see them for who they really are
    Chancers and scroungers
    Layabouts and loungers
    With bombs up their sleeves
    Cut-throats and thieves
    They are not
    Welcome here
    We should make them
    Go back to where they came from
    They cannot
    Share our food
    Share our homes
    Share our countries
    Instead let us
    Build a wall to keep them out
    It is not okay to say
    These are people just like us
    A place should only belong to those who are born there
    Do not be so stupid to think that
    The world can be looked at another way
    (now read from bottom to top)

    Originally posted on the Asylumist:
    Tags: poem, refugee Add / Edit Tags
  5. Asylum and the Limits of Mercy in a Nation of Laws

    The case of Ded Rranxburgaj, a rejected Albanian asylum seeker living in Detroit, has been getting attention lately. Mr. Rranxburgaj arrived in the United States in about 2001 and applied for asylum. An Immigration Judge rejected his claim in 2006, and the BIA denied his appeal in 2009. Instead of deporting him, the government allowed him to remain in the U.S. for humanitarian reasons: He was the primary caretaker for his wife, who has multiple sclerosis. Mr. Rranxburgaj's wife is wheelchair bound, and she recently suffered a stroke. Doctors say that she is too sick to travel.

    Rev. Zundel: When life gives you ICE, make ice cream.

    There seems little doubt that Mr. Rranxburgaj is a "decent, family man" who does not pose a danger to the United States. According to his wife, he is a "very good husband" who helps her "take a shower... change clothes [and] cook." Besides his wife, he has two sons in the United States--a DACA recipient and a U.S. citizen.

    Mr. Rranxburgaj was living here peacefully since his case ended in 2009, but events took a turn for the worse last year when ICE decided to implement his removal order. According to an ICE spokesman: "In October 2017, ICE allowed Mr. Rranxburgaj to remain free from custody while making preparations for his departure pursuant to the judge’s order, which he had satisfactorily done." "He was again instructed to report to ICE [to be deported this week], but did not report as instructed."

    Instead, Mr. Rranxburgaj took refuge in the Central United Methodist Church in downtown Detroit. Since ICE generally does not arrest people from churches, Mr. Rranxburgaj apparently hopes to avoid removal by remaining there, at least until something can be done about his deportation order. His lawyer has requested a stay of removal from ICE, but there is no decision yet, and ICE does not appear willing to play nice. An agency spokesman says that Mr. Rranxburgaj is considered a "fugitive."

    Meanwhile, the church is standing with Mr. Rranxburgaj and his family. The Pastor, Rev. Dr. Jill Zundel, said that the decision was in line with the teachings of Jesus, who had "compassion for those who seek new hope in a new land." Rev. Zundel, who--if I can say this about a member of the clergy--seems like a real bad ***, has a tattoo on her arm that reads, "When injustice becomes law, resistance becomes duty."

    There are different ways to look at Mr. Rranxburgaj's case. On the one hand, he is a man who has been in the United States for 17 years, his immediate family members are all here, he takes care of his sick wife, and he does not pose a danger to our country. So he should be allowed to stay. On the other hand, he is a man whose asylum case and appeal were rejected, and who is violating the law by remaining in our country. Allowing him to remain here will only encourage others to follow his lead. Therefore, he must go.

    In short, Mr. Rranxburgaj's story lays bare the conflict between enforcing the immigration law and showing mercy in a sympathetic case.

    This situation reminds me of another--much older--conflict between law and mercy (or, more accurately, between law and justice, but I think the concepts of mercy and justice are closely related). After he was unjustly sentenced to death, Socrates sat in his cell waiting to be executed. His friend Crito arrived to help him escape. In the ensuing dialogue (creatively named The Crito), Socrates argues that he cannot violate a law, even an unjust law. He says that he entered into a social contract with "The Law" by choosing to live in Athens, and he gained benefits accordingly. To violate the rules now would undermine the social contract and ultimately destroy the city. Rather than breaking the law to escape, Socrates believed he should try to persuade the authorities to let him go. Failing that, he must accept death, since he could not justly attack The Law (by escaping) on account of having been unjustly convicted. In other words, Socrates disagrees with Rev. Zundel's tattoo.

    So where does this leave us?

    I must admit that my sympathies lie with Mr. Rranxburgaj and his family. They are not doing anyone any harm. What is the benefit of ripping the family apart, especially considering the wife's vulnerable position? Thomas Aquinas writes that "Mercy without justice is the mother of dissolution; justice without mercy is cruelty."
    In Mr. Rranxburgaj's case, fealty to the abstract concept of "The Law" seems cruel in the face of family separation and the wife's illness.

    On the macro level, Mr. Rranxburgaj's case begs the question whether there is room for mercy (justice?) in the enforcement of our nation's immigration laws. Well, why shouldn't there be? Every person convicted of a crime is not subject to the maximum penalty. Indeed, due to mitigating factors and prosecutorial discretion, very few criminals actually receive the maximum sentence. The same is true for government enforcement in the civil arena: Not everyone who breaks the speed limit receives a ticket. If there is room for mercy and justice in the implementation of the criminal and civil law, why can't the immigration laws be interpreted in a similar manner?

    Unfortunately, that is not the view of the Trump Administration, which seems hell-bent on enforcement. To be fair, restricting immigration was an important plank of Mr. Trump's campaign, and so it makes sense that he would crack down on illegal immigration. However, in Mr. Rranxburgaj's case, and in many other instances, the Administration's policies defy common sense. In the rush to implement The Law, the Administration has lost sight of justice. And of humanity.

    When our government replaces mercy with cruelty, it is not only "illegals" who will suffer. We all will. And so it is heartening to see brave people like Rev. Zundel and her congregation standing up for justice, even when it sometimes means disobeying the law.

    Originally posted on the Asylumist:
Page 2 of 104 FirstFirst 12341252102 ... LastLast
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: