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Jason Dzubow on Political Asylum

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  1. The Terrorist Tactics of the Anti-Terrorism Executive Order

    Earlier this week, President Trump issued a new Executive Order ("EO") to replace one of his prior orders, which was largely blocked by the federal courts. The new EO, Protecting the Nation from Foreign Terrorist Entry into the United States, temporarily bans certain nationals of six majority-Muslim countries from entering the United States, suspends the U.S. refugee program for 120 days, and reduces the total number of refugees that the U.S. will resettle in FY 2017. Whether the new ban can withstand court scrutiny, and how it will ultimately effect who can come to our country, remains to be seen.
    "My favorite four-letter word."
    For those foreigners already in the United States, the new ban has little legal effect. The immigration status of permanent residents, refugees, asylees, and asylum seekers remains essentially untouched. One possible exception is for family members of asylees and refugees who are hoping to come to the U.S. on a Refugee/Asylee Relative Petition (form I-730). Such relatives from the six "banned" nations--Iran, Libya, Somalia, Sudan, Syria, and Yemen--may be ineligible for a visa for a 90-day period. However, even this is unclear, as the EO provides a number of exceptions for nationals of banned countries, and such relatives may be entitled to an exception (depending on how you read the EO).

    So for non-citizens in the U.S., including those from banned countries, the EO has almost no effect on their legal status here. That's not to say that the EO has no effect--it certainly does. But that effect relates to the message the EO sends and the psychological damage it inflicts on Muslims and on non-citizens. Indeed, for this population, the effects of the anti-terrorism EO are similar to the effects of an actual terrorist attack in certain key ways.


    Like a terrorist attack, the number of people directly impacted by the EO is much smaller than the number of people terrorized by it. The new EO is very narrowly tailored, so much so that it almost does not make sense. For example, the Administration claims that vetting for the six banned countries is insufficient. Yet the order allows nationals of those countries who already have visas to come to the United States. If there is a problem with the vetting, shouldn't all the "improperly" vetted visas be revoked? Presumably, the Administration wants to avoid another humiliating defeat in court, but the limited scope of the EO seems to undercut the very rationale for its existence.


    On the other hand, if the purpose of the EO is not really to block people from coming here, but rather to frighten people who are already here (Muslim Americans and non-citizens), the limited legal effect is less of a concern. As long as the order stands up in court--and even if it doesn't--Mr. Trump has sent a strong message to the intended audience (really, there are two intended audiences: Mr. Trump's supporters who want to see him fighting against "the others" and "the others" themselves, who feel targeted and excluded by the Administration's policies). In this sense, the EO mirrors a classic terrorist tactic--limited impact (because you have insufficient resources to have a wider impact) with maximum effect (everyone in the targeted population is frightened).


    And make no mistake, the EOs and the accompanying rhetoric are affecting their intended targets. Reports indicate that non-citizens and their children are under great stress due to President Trump's words and policies. This stress can have harmful and life-long effects, especially on children. Muslims, including American citizens, have been subject to a barrage of bigoted statements from the President and his surrogates, and they are also suffering from similar types of stress. Some refugees are fleeing the United States, which they now view as unsafe, for Canada. So while the legal effect of the EOs may be small, the harm is very real, and very damaging.


    Mr. Trump's EOs are similar to terrorism in another important way: They help create a vicious cycle. Terrorists rarely have the power to conquer territory. Instead, the purpose of their attacks is to draw a response. Unless the response is careful and precise (a rarity), it can cause further alienation and anger, thus driving more people into the terrorists' camp--a vicious cycle. In the case of the EOs, they help justify the narrative that groups like ISIS have been peddling (that the United States is at war with Islam). They also frighten and alienate people living in our country, particularly Muslims and non-citizens. Since alienated and frightened people are more likely to embrace extremism, the EOs are a type of self-fulfilling prophesy: EOs push people towards extremism, extremism justifies more EOs. It's a vicious cycle analogous to the one created by terrorism.


    Finally, the EOs do not exist in a vacuum. They are part of a larger campaign to demonize foreigners and Muslims. The whole effort of the Trump Administration towards such people is irresponsible and dangerous. It puts our country at greater risk by encouraging extremism and discouraging cooperation. But unfortunately, this Administration has proved again and again that it will not allow facts to get in the way of ideology, or sound policy advice to contradict prejudice. The new Executive Order is just the latest example of the misguided course our country is now taking. We are all less safe because of it.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. A New Type of EAD Denial

    This article is by Ruth Dickey, a brilliant and dashing associate at Dzubow & Picher, PLLC.

    During the latter part of the Obama Administration, it became common for DHS/ICE attorneys (the prosecutors) in Immigration Court to offer "prosecutorial discretion" or PD. If the applicant accepted PD and the Immigration Judge agreed, the case would be administratively closed. Basically, it would be taken off the court's calendar and placed into a permanently pending status. Applicants with weak cases might take PD rather than risk losing their cases with the Judge and getting ordered deported.

    Perhaps USCIS has a case of the Gremlins. First, they sabotaged B-17's and P-52's; now, they're messing with I-765's.
    Under President Obama, PD was typically offered to people who were not enforcement priorities for ICE – that is, the person had positive factors, like long-term ties to the United States and did not have any disqualifying criminal issues. During the Obama Administration, ICE published a list of factors that prosecutors would consider when a person asked for PD. According to recent data, since 2013, almost 67,000 court cases have been administratively closed based on PD. This represents about 10% of all case closings in Immigration Court.

    If your asylum case was administratively closed by an Immigration Judge, and if you had your employment authorization document ("EAD") based on a pending asylum case, you remain eligible to renew the EAD for as long as the case is in administrative closure (theoretically, forever). This is because the case is technically still pending, and thus still "alive" for purposes of renewing the EAD.


    Since Donald Trump came into office, DHS has largely done away with PD, and so we can expect to see far fewer cases administratively closed in the future. However, our office has several asylum clients whose cases were already administratively closed. They have ongoing needs, such as the need for an EAD.


    One of my clients in this situation is an Unaccompanied Alien Child or UAC. UACs are people who crossed the border as minors without a parent or guardian. Such people are given additional procedural protections. For example, UACs have the right to present their asylum claims to an Asylum Office, which is a less intimidating environment than an Immigration Court. In my case, an Immigration Judge administratively closed my client's case so she could file her case with the Asylum Office. Before the case was closed, I "lodged" her asylum application with the Court to start her “asylum clock,” which then allows her to file for an EAD (after a 150-day waiting period).


    When the time came, our office prepared the EAD application (form I-765) and mailed it. Last week, we received a response denying the EAD. In its denial, USCIS referred to the applicable regulation, 8 CFR 208.7(a)(1), claiming that it said:

    An applicant whose asylum application has been denied or closed by an asylum officer or by an immigration judge within the 150-day [clock] period shall not be eligible to apply for employment authorization.

    But this is not what the regulation says. USCIS inserted the phrase "or closed" into the language of the actual regulation. The full sentence in the regulation actually reads:

    An applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization.

    Someone at USCIS added the words “or closed” to their quotation of the regulation, and then denied our client's case because it had been administratively closed. The actual language of the regulation states that only denied--not closed--cases are ineligible for an EAD. The idea that USCIS would add language to the regulation in order to improperly deny someone--a UAC no less--their work permit is shocking and distressing.


    I have already escalated the issue to the USCIS Ombudsman, an office within USCIS that can assist with delayed or difficult cases, because the denial is so problematic. I am waiting to hear back from them, but the Ombudsman’s review process can drag out for months, and my client will not have a work permit in the meantime. This is extremely frustrating for her, especially because she is young and vulnerable (she has that UAC designation for a reason).


    If your case has been administratively closed and your EAD application has been denied, please let us know. If there are others experiencing this problem, we can present the issue to USCIS and hopefully seek a resolution of this unfair and harmful practice.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. Implementing the Executive Orders: The DHS Memo

    Earlier this week, DHS Secretary John Kelly issued a memorandum describing how DHS plans to implement President Trump's policies concerning "Border Security and Immigration Enforcement Improvements." Here, I want to discuss how this memo could affect the asylum system.

    First, for people granted asylum or who have obtained their residency (green card) or citizenship through asylum, the memo has essentially no effect. The only possible exception is that DHS plans to expand the Fraud Detection and National Security Directorate (affectionately referred to as the FDNS), and if DHS somehow discovers that a previously-granted case was, in fact, fraudulent, it could reopen that person's case. Also, given the Trump Administration's stepped-up enforcement, it is a good idea to carry proof of lawful status with you at all times, just in case you are stopped by the authorities (and in many cases, non-citizens are actually required by law to carry proof of immigration status).

    Shade-enfreude (defined): The pleasure one gets knowing that someone with a darker skin tone is in pain.

    For people with asylum cases currently pending--before the Asylum Office or the Immigration Court--the memo also has little effect. As I have written here before, a person with a pending asylum case cannot be deported from the United States without due process of law, meaning a hearing before an Immigration Judge and an appeal. So while the atmosphere for asylum seekers has become more toxic, the substantive law and procedure remains largely the same. As mentioned above, you should carry proof of your pending status (work permit, asylum receipt, court order) with you at all times.


    One possible issue for people currently in the system is more delay. The DHS memo directs USCIS "to increase the number of asylum officers and FDNS officers assigned to detention facilities located at or near the border with Mexico to properly and efficiently adjudicate credible fear and reasonable fear claims and to counter asylum-related fraud." The memo also envisions a "joint plan with the Department of Justice to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants." Assigning more Asylum Officers and Immigration Judges to the border (either by physically sending them there or by having them adjudicate cases remotely), obviously means that those adjudicators will not be available to work on the hundreds of thousands of cases in the backlog, and that could mean more delay. In addition, the memo calls for hiring thousands more immigration officers, and for stepped up enforcement and detention. If all that happens, many more people will be channeled into the Immigration Court system, and unless more judges (lots more judges) are hired, the influx of people into the system will cause further delay. On the other hand, the memo also calls for expanded use of "expedited removal," which may end up removing certain cases from the system and cause the remaining cases to move more quickly. How all this plays out, only time will tell.


    Another possible issue for people with pending asylum cases is the increased focus on fraud. The Immigration and Nationality Act and the REAL ID Act, along with the Code of Federal Regulations, and case law set forth the standards for evaluating credibility. The DHS memo calls for "enhancing" asylum referrals and credible fear determinations. While this would not directly impact people with pending asylum cases (as asylum referrals and credible fear determinations occur prior to a case being sent to Immigration Court or to the Asylum Office), it might signal DHS's intention to subject asylum cases to greater scrutiny. Also, of course, expansion of the FDNS points towards a greater focus on asylum fraud, which could impact pending cases (personally, I think DHS should be doing more to combat asylum fraud, as long as they are doing so effectively, as I discuss here).


    For people inside the United States who plan to seek asylum here, but have not yet filed, the memo may affect you. If you entered lawfully with a visa, you should be able to apply for asylum as before. Indeed, even if you entered unlawfully, you should be able to seek asylum as before. However, if you entered the U.S. without inspection or based on some type of fraud (how broadly "fraud" will be interpreted is not yet known), and you are detained by ICE (Immigration and Customs Enforcement) before you file for asylum, you could be subject to "expedited removal." People crossing the border illegally who get caught or who surrender to ICE agents may also be subject to expedited removal.


    People facing expedited removal are permitted by law to request asylum. If they indicate a fear of harm in their country, the law requires that an Asylum Officer perform a "credible fear interview" where the person must demonstrate a "significant possibility" that they could establish eligibility for asylum. If they meet this standard, their case will be referred to an Immigration Judge for an asylum hearing. If they do not demonstrate a "significant possibility" of winning asylum, they can be removed immediately from the United States (subject to limited review by an Immigration Judge). The DHS memo indicates that the government will greatly expand the use of expedited removal, though the details of the plan have not yet been released.


    As you might imagine, there are some major problems with the expedited removal process. For one, ICE officers often fail to inform aliens of their right to seek asylum (or ignore their requests to seek asylum). If this happens, people with a legitimate asylum claim may be removed from the United States before they have an opportunity to claim asylum or have a credible fear interview. The expedited removal process is quite fast and there is little chance to retain counsel and defend yourself, and no opportunity to see an Immigration Judge. In addition, the DHS memo seeks to expand the use of expedited removal and raise the evidentiary bar for credible fear interviews. All this will make it more difficult for asylum seekers who are subject to expedited removal from asserting their claims. I plan to write another post on this topic, but I will first wait for DHS to clarify its position on expedited removal (in the mean time, if you want to learn more, check out this excellent practice advisory by the American Immigration Council).


    Per its campaign promises, the Trump Administration is ramping up immigration enforcement efforts. People who have won asylum, or who have already filed, are largely insulated from those efforts, and without Congressional action, it is likely to remain that way. But if you are in the United States and you plan to file for asylum, you should do so soon (at least before your lawful status expires). Remaining here lawfully is the best way to protect yourself from the Administration's enforcement efforts.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. Hateful Words and Helpful Actions

    After nearly 3,000 Americans were murdered on September 11, 2001, President Bush spoke to the nation and to the world. He assured us—Muslim and non-Muslim—that American was not at war with Islam. Would that President Trump had spoken similar words before instituting his immigration ban on seven majority-Muslim countries. But that is not Mr. Trump’s style.
    Lord of the Zings: The President's hateful words may be worse than his harmful EOs.
    The resulting firestorm may have been pleasing to the President’s most ardent supporters, who seem to relish the sight of suffering families and damaged government institutions, but for those of us concerned about national security, morality, and the rule of law, the President’s Executive Orders (“EOs”) were a frightening development.

    The problem, though, was not so much the EOs themselves, the effect of which is not immediately obvious, and in any case, portions of which have been blocked by the courts, but rather the divisive rhetoric attached to the orders. Let me explain.

    The EOs, which are currently blocked by the courts, would bar nationals of Iraq, Iran, Syria, Yemen, Sudan, Somalia, and Libya from entering the United States for 90 days. All refugees would be barred from entering the country for 120 days, and Syrian refugees would be barred indefinitely. On its face, this is not a Muslim ban. If you are from one of the listed countries, you are barred from entry, regardless of your religion, and if you are a Muslim person from another country, you are not barred from entry. But to me, this is a case of “That’s what it says; that’s not what it means.”

    So what does it mean? First, in the context of campaign statements disparaging to Muslims, and some statements by Trump surrogates, it’s easy to see why many are interpreting the EOs as a first step towards a more general Muslim ban. Rumors are swirling that the list of countries will be expanded, to include more Muslim nations, such as Pakistan and Afghanistan. In addition, the EOs direct the government to track and publish information about crimes committed by aliens, with a particular emphasis on people convicted of terrorism-related offenses, people who have been “radicalized after entry,” and “gender-based violence against women or honor killings.” Further, the EOs call for a “realignment” of refugee admissions to focus on refugees who are from a “minority religion in the individual’s country of nationality.” It’s hard not to view all this as targeting Muslims.


    But perhaps I’ve gotten it all wrong. There have been counter-arguments advanced by the President’s defenders. After all, the EOs do not directly refer to Muslims, and the listed nations are either chaotic (Iraq, Somalia, Yemen, Libya), malignant (Iran) or both (Sudan, Syria). Also, as the EOs require, we should be keeping track of aliens who engage in criminal behavior or who support or commit terrorism (indeed, I myself have argued for such transparency in this blog).


    But here is why I don’t buy the counter-arguments and why I believe the EOs are designed to target Muslims: The President is very aware that many people view the orders as a Muslim ban, but he has said nothing to allay the fears of Muslims and immigrants in the U.S. or our Muslim allies abroad. He could easily have issued these same exact EOs and avoided the chaos by better explaining his intentions. He chose to not do that. Maybe it’s me projecting, but I can’t help but feel that he and his core staff are getting some sadistic pleasure watching the suffering and confusion that they are causing. I imagine they also view the mess they’ve made as evidence that they are fulfilling their promises to get tough on immigration and to protect the homeland.


    It almost goes without saying that things could have been done differently. The ban could have been explained as a necessary and temporary policy adjustment to enhance our national security. President Trump could have expressed his sorrow that such orders were needed, and he could have reassured people that the ban was only temporary. He could also have made some positive statements about immigrants and Muslims, especially those who are serving with us in the war on terror. But he did not. So all of us are left to wonder whether this is a short-term measure targeting only the listed countries, or whether it is the beginning of something bigger. For American Muslims and immigrants, and for our allies abroad, the uncertainty of the EOs is probably worse than the EOs themselves.


    The question, though, is what do we do from here? At this point, it would be naïve to expect any comforting rhetoric, or even common decency, from our President, so I think it is up to us—immigrants, advocates, and their supporters—to craft a response to the new reality.


    For me, the protests are a good start. They show our solidarity and our strength (indeed, this is precisely why we held the Refugee Ball last month). There is some comfort in knowing that you are not alone and that the larger community is ready to defend you, and refugees and immigrants in our country are certainly not alone. Tens of thousands of protesters in the streets and at airports have demonstrated as much. We also see this as hundreds of elected representatives and other leaders have been speaking out in defense of our non-citizen neighbors.


    Lawsuits—such as the lawsuits by the ACLU and several state governments—are also crucial. Thus far, they have blocked some of the most offensive portions of the EOs. The lawsuits show that the protections of our laws and Constitution extend to all non-citizen in our country and quite possible to some non-citizens who are outside our country. This will, I hope, provide some comfort to those in the Administration’s crosshairs.


    Legislation in various states and municipalities is also important. Such action can serve to shield non-citizens from some provisions of the orders, particularly those that seek to encourage (or more accurately, coerce) local governments to help enforcement federal immigration law. They also potentially help build momentum for more positive legislative change on a national level.


    Finally, volunteering to assist non-citizens--with housing, food, job search, English--helps such people integrate into our communities and feel more welcome in our country. If you are looking for volunteer opportunities, you might try contacting a local non-profit organization.


    While these actions cannot fully allay the fear felt by refugees, asylum seekers, immigrants, Muslims, and many others in our country, they are all signs of the strong resistance President Trump faces to his policies and to his divisive world view. As we move through this difficult time, we must continue to resist hatred and work to support each other.

    Originally posted on the Asylumist: www.Asylumist.com.
  5. Updates on the Executive Orders: The Umpire Strikes Back

    President Trump's Executive Orders ("EOs") on immigration triggered a series of lawsuits that are still playing out in federal courts across the nation. The lawsuits have resulted in orders barring certain portions of the EOs, at least for the time being.
    Judge James Robart: Referees helping Refugees.
    For those not familiar with the U.S. system, we have three (supposedly) co-equal branches of government: The executive (the President), the legislative (Congress), and the judicial (federal courts). The judicial generally acts as an umpire or referee, making sure that the other branches play by the rules, or in this case, the Constitution and laws of the United States. What has been happening with the EOs is that the President is asserting his authority over immigration (and the President does have broad authority over immigration), but he is constrained by the U.S. Constitution and the existing immigration law. The lawsuits argue that the President has overstepped his authority, and so far, most courts have agreed to issue preliminary orders blocking the EOs, at least until the courts can more fully analyze whether the orders comply with the law.

    Probably the broadest decision thus far issued was by a U.S. District Judge in Seattle, James Robart. The lawsuit was brought by Washington State and the state of Minnesota in their role as "parens patriae of the residents living in their borders." The decision temporary stays several key portions of the EO related to terrorism based on the Judge's conclusion that the states' lawsuit was likely to succeed on the merits and that the states face "immediate and irreparable injury" as a result of the EOs. Specifically, the Judge found that the EO "adversely affects the States' residents in the areas of employment, education, business, family relations, and freedom to travel." In addition, the Judge found that, "the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injuries to the States' operations, tax bases, and public funds." Thus, the Judge issued a temporary restraining order against the EO. The order blocks portions of the EO nationwide, and will remain in effect until the Court can reach a decision on the merits of the lawsuit (or until it is overturned by a higher court).


    The President, through the Department of Justice, filed an appeal, but the U.S. Court of Appeals for the Ninth Circuit has thus far refused to overturn the District Judge's order. So what does all this mean?


    First, according to its website, USCIS "continues to adjudicate applications and petitions filed for or on behalf of individuals in the United States regardless of their country of origin, and applications and petitions of lawful permanent residents outside the U.S. USCIS also continues to adjudicate applications and petitions for individuals outside the U.S. whose approval does not directly confer travel authorization. Applications to adjust status also continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated in the Jan. 27, 2017, 'Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States.'" This means that even if you are from one of the "banned" countries--Iraq, Iran, Syria, Sudan, Somalia, Libya or Yemen--your case will be processed as before the EO. So USCIS should continue to issue decisions for nationals of such countries, at least for the time being.


    Second, the State Department will resume issuing visas for people from the listed countries, including refugees. U.S. visas for nationals of these countries that were "provisionally revoked" are now "valid for travel to the United States, if the holder is otherwise eligible." Meaning that if you are from a banned country and you have a valid U.S. visa, you should be able to enter the United States. Again, the Judge's order is temporary, and it may be overturned, so if you have a visa and wish to come to the United States, you should do so immediately, since we do not know for how long the Judge's temporary restraining order will remain in place.


    Third, DHS/Customs and Border Protection is also following the Judge's order, even if it is doing so reluctantly. From the CBP website:

    In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.

    So all people with valid visas and who are otherwise eligible to enter--including nationals of the banned countries--should be able to board planes, travel to the United States, and enter the country. In short, the Judge's order restores the situation for such travelers to how it was prior to the EOs.


    Finally, I wrote in an update to last week's post that additional countries may be added to the banned list. As long as the Judge's order is in place, I doubt that will happen, and--more importantly--the State Department informed the American Immigration Lawyer's Association that there was no "addendum, annex or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in [the] Executive Order." Hopefully, this means that we will not see additional countries added to the "banned" list.


    The legal fight over the EOs is a rapidly moving target, so before you make any travel plans, please check the news or check with a lawyer to make sure there are no additional changes affecting you. I will also try to keep posting updates here.

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