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Jason Dzubow on Political Asylum

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  1. I Don't Know, I Don't Know, I Don't Know

    If you are an asylum seeker waiting for your interview, repeat these words: I don't know. Again: I don't know. Say them out loud: I don't know. One more time: I don't know. These three words may mark the difference between an asylum grant and a denial, but too few asylum seekers ever utter them.
    "I appear wise because I do not think I know what I do not know" - Socrates. #BeLikeSocrates
    I have previously written about how it is important for lawyers to use these same words, and I might even go as far as saying that if you visit a lawyer and he or she never says "I don't know," you might be better off finding a different lawyer. When we do not know or acknowledge the limits of our own ignorance, we risk giving bad advice.

    Asylum seekers also need to practice their I-don't-knows. If you can learn to master these three little words, you might save yourself a whole lot of trouble. Why? Because too many applicants answer questions where (1) They do not understand the question, (2) They do not know the answer, or (3) They do not remember the answer. And if asylum applicants give an answer when, in fact, they do not know, it starts them on a path that could easily end in a denial.


    Here’s an example from a recent case I worked on. The asylum applicant’s father was prominent in his country’s government, but the applicant did not know much about his father’s position. The Asylum Officer asked for some details about the father’s job, and the applicant answered. But the applicant really did not know the answer. He just made a series of assumptions based on the limited information he did know. It turns out, the assumptions were wrong, and the applicant’s testimony ended up being inconsistent with the testimony of other family members. Fortunately, we had a good Asylum Officer whose questions brought my client's assumptions to light, and so I think the applicant’s credibility was not damaged. Nevertheless, had the applicant just said, “I don’t know” instead of assuming, he would have avoided a potential pitfall (and—more importantly from my point of view—he would have saved his attorney a few unwelcome heart palpitations).


    Having observed many such interactions, I always advise my clients to say that they do not know or do not remember, if that is the case. But most people don't fully grasp the importance of only answering when they know the answer. If you guess—about a date or an event—and you are wrong, you risk creating an inconsistency, meaning that your spoken testimony may end up being different from your written statement or evidence, or different from information that the U.S. government already has about you (from your visa application, for example). The Asylum Officer or Immigration Judge may view inconsistencies as an indicator that you are not telling the truth. The theory (flawed, in my opinion) is that people who tell the truth will present consistent testimony in their oral and written statements, and in all the interviews with the U.S. government. The bottom line is this: If your testimony is inconsistent, the adjudicator may view you as a liar and deny your case on this basis.


    I get that it is not always easy to say that you don’t know. Most applicants understand that it is important to answer the questions; after all, that is why they are at the interview or in court in the first place. And of course, not answering can create other issues (it is common to hear adjudicators ask, “Why can’t you remember?” to applicants trying to recall relatively obscure events from many years in the past). Plus, in the stressful environment of the Asylum Office or Immigration Court, many applicants feel they need to give an answer, even if they are not sure what the answer is.


    Indeed, there are times when saying “I don’t know” can be a real problem for a case. One of my clients was recently asked about his prior political activity. He had no evidence showing his political involvement, and so his testimony took on added importance. In that case, if he were asked about the philosophy of his party or the party’s leadership, the inability to answer might be viewed as evidence that he was not active in the party. Fortunately, in our case, the client knew the basic beliefs of the party and the names of its leaders. He was also able to describe in detail his political activities. His involvement in the party was years ago, but I suspect that if he had told the Judge that he did not remember or did not know, it would have negatively affected his case (maybe it’s a topic for another day, but the fact is, many political activists do not know much about their parties—they have joined because a parent or sibling was a member, or due to ethnic or regional loyalty; the party’s supposed philosophy, its activities, and its leaders are of little concern to them).


    It is preferable to know your case and answer the questions that are asked. So review your affidavit and evidence before your hearing. Practice answering questions with your lawyer or with a friend. Try to remember the dates (at least more or less) of events. Know the names of relevant people and places, and about your political party or religion, or whatever forms the basis of your asylum claim. Try to remember all this, but if you can't, don't be afraid to say "I don't know." As we have seen, not knowing can be a problem. But not knowing and guessing can be a disaster.

    Originally posted on the Asylumist: www.Asylumist.com.
  2. Fred Korematsu and the Forgotten Legacy of Lies

    Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.
    Fred Korematsu and the Presidential Medal of Freedom.
    After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).


    The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”


    Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:

    In the long history of our country's constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.

    Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.


    With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.


    But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.


    The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.


    As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983--more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”


    In 2011, the Acting Solicitor General stated:

    By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

    [The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

    And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.


    Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.


    Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.

    Learn more about Fred Korematsu and his on-going story at the Korematsu Institute.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: korematsu, trump Add / Edit Tags
  3. Illogical Fears Generate Illogical Policies: Notes from the Center for Immigration Studies “Asylum Fraud” Panel

    This article is by Josh Rigney, the Legal Services Program Manager at the Torture Abolition and Survivors Support Coalition International (TASSC). Josh has worked with survivors of torture seeking asylum since May 2012. He holds a Master’s in International Relations and a Juris Doctor from American University. He is a member of the Virginia State Bar. The opinions expressed in this article are his alone, and do not represent the opinions of TASSC.
    Taking asylum policy advice from CIS is like taking urban planning advice from Godzilla.
    On May 10, I attended a panel discussion organized by the Center for Immigration Studies (“CIS”) and titled Asylum Fraud and National Security. Described on the CIS website as a discussion on the threat posed by “the vetting – or the lack thereof” of asylum applicants in the U.S., the panel included three speakers who, at least on paper, appeared to have impressive expertise on immigration issues. Two of the speakers, Andrew Arthur and Mark Metcalf, formally served as immigration judges in Pennsylvania and Florida, respectively. The final panelist, Todd Bensman, is a long-time journalist with degrees in journalism and homeland security studies.

    CIS’s tagline is “Low-immigration, Pro-immigrant,” and it bills itself as “an independent, non-partisan, non-profit, research organization.” However, CIS is reliably biased, and produces shoddy “research” prone to support any policy that will decrease all immigration to the United States, regardless of the heartless nature of the policy. For example, a recent Washington Post article quoted Executive Director Mark Krikorian speaking in favor of limiting immigration by breeding fear of U.S. immigration policies amongst potential immigrants. Krikorian stated that only if Trump follows through on the fear inspired by his pronouncements on immigration will CIS’s preferred immigration levels be realized.


    As an immigration attorney who works with survivors of torture seeking asylum, turning the asylum process into a national security witch hunt would obviously impact those whom I serve. But that is not the only reason the panel’s viewpoints should matter to the broader asylum-seeker community and its supporters. As a recent New York Times article stressed, CIS – designated a hate group by the Southern Poverty Law Center – and other anti-immigrant hard-liners now have the ear of the White House and congressional policy makers on immigration.


    The panelists stressed several points during the event. First, immigrants are a threat to the safety of the United States. Second, while refugees pose a danger, asylum seekers are an even greater threat to U.S. national security. Third, fraud is rampant among asylum seekers. Therefore, the panelists agreed that U.S. policymakers must make it harder for everyone to receive asylum, whether or not a particular individual has a legitimate claim.


    Immigrants are Dangerous


    To convince the small crowd at the event that all immigrants – asylum-seeking or otherwise – pose a threat to the safety of the United States, each panelist took turns describing his favorite scary immigrant story. Andrew Arthur spoke about Ramzi Yousef, one of the perpetrators of the first attack on the World Trade Center in New York City in 1993. Bensman spoke of Pakistanis with potential terrorist ties crossing the southern border with the help of a smuggler named Rakhi Gauchan. He stressed that Gauchan believed one of the Pakistanis was a terrorist, and Bensman stated that this person later received asylum.


    Of course, relying on scattered anecdotes to draw broad conclusions about all asylum seekers does not make for sound policy. For example, Bensman did not mention whether he actually knew the Pakistani was a terrorist. Indeed, according to his own master’s thesis, American investigators never determined whether Gauchan’s terrorism suspicions were accurate.


    As with any policy issue, harping on the inevitable few bad apples does not support throwing all of them out. Overall statistical trends must be analyzed, particularly when the goal is to punish an entire group of people, and particularly one as large as asylum seekers. In the first three months of 2017 alone, 40,899 people filed asylum claims with the Asylum Office. The handful of cases the panelists cited in their comments cannot justify making the asylum process more difficult for all of these people.


    What Do the Numbers Tell Us?


    A study published by the Cato Institute, an organization founded by one of the Republican mega-donor Koch brothers, determined that the chance that you will be killed by a foreign-born terrorist who is in the U.S. because of a grant of asylum is 1 in 2.7 billion. Between 1975 and 2015, over 700,000 people were granted asylum in the United States. Of those, just 4 have been “convicted of planning or committing a terrorist attack on U.S. soil…”


    So what statistics did the expert panel use to support their assertion that all asylum seekers are dangerous? In the only notable mention of actual numbers, Mark Metcalf provided data released by EOIR on the number of immigrants with pending court cases who failed to show up in court for their hearings. However, at no point did he provide any breakdown of the numbers for asylum seekers; nor did he explain how failing to show up for a court hearing is equivalent to committing asylum fraud or posing a threat to U.S. national security.


    One of the panelists, in a nod to those in the crowd who felt the U.S. is too generous to immigrants, mentioned that the U.S. “accepts more refugees than the rest of the world combined.” For the record, the U.S., a country of more than 325 million people, resettled 66,500 out of the 107,100 total refugees resettled by all countries in 2015. Canada, a country with a population of approximately 36 million people, resettled 20,000 refugees. Furthermore, Turkey (2.5 million), Pakistan (1.6 million), and Lebanon (1.1 million) all host over a million refugees each. For asylum seekers, the United States received only slightly more applications (172,700) than Sweden (156,400), a country of only 10 million people. Meanwhile, Germany (population of 81 million) received 441,900 asylum applications.


    The point is that while the U.S. does offer refuge to a significant number of people fleeing persecution every year, that does not justify the draconian policy recommendations supported by the panelists.


    Asylum Seekers vs. Refugees


    I can actually agree with some of the panel’s comments comparing the relative threat posed by refugees against the threat posed by asylum seekers. Arthur stressed that the primary difference between refugees and asylum seekers is that refugees are fully vetted prior to ever setting foot in the United States. In contrast, asylum seekers make it to U.S. territory, then seek protection while waiting for their asylum claim to be granted or rejected. Depending on the court or asylum office with jurisdiction over the applicant’s claim, that process can take many years (one survivor from my organization recently received asylum after a ten-year struggle). During this time, asylum seekers remain in the United States without undergoing security checks like those that refugees must pass before entering.


    Of course, none of this really matters unless you accept the idea that immigrants are truly a threat – which takes us back to the previous point. Yes, in theory, asylum seekers have the potential to pose a greater security threat than refugees – but that threat is already extremely low to begin with. In actuality, objective evidence that asylum seekers as a group are a threat to U.S. national security is weak at best.


    For example, the panelists claimed again and again that fraud is rampant in the asylum system – relying, again, on a handful of selected stories. As evidence of potential security threats, they correctly pointed out that the Department of Homeland Security and the Department of Justice do not conduct regular system-wide fraud risk assessments. But without such assessments, how did the panelists conclude that fraud is rampant?


    “Pro-immigrant”


    At times, at least one panelist expressed sympathy for the plight of the tens of thousands of asylum seekers with legitimate claims. For example, Arthur correctly stated that each fraudulent asylum application filed by someone without a claim will cause further delay in the process for another asylum seeker with a legitimate claim. He also paid lip service to the reality that the United States is a nation built by immigrants. Overall, however, the panelists expressed support for several policies that would have a disastrous impact on all asylum applicants seeking safety in the U.S.


    Arthur promoted the use of detention for asylum seekers, stating that the longer a person is detained, the less likely that person is to obtain asylum fraudulently. He failed to mention the devastating psychological repercussions detention will have for the thousands of torture and trauma survivors—many of whom are already suffering from PTSD—who would inevitably be thrown into such facilities.


    Arthur also declared that any person that transits through another country on the way to the United States lacks true fear, but instead seeks economic opportunity. In response, Mark Krikorian, in the role of moderator, asked if the U.S. should categorically deny asylum to anyone that transited through another country. Arthur suggested that could be achieved through legislation to change the eligibility requirements for asylum.


    Bensman suggested that only when we can guarantee the identity of people through unimpeachable ID documents should we allow them to seek asylum. But in reality, the lack of such documentation often stems from the chaos that forced asylum seekers to seek safety in the first place. In other words, his suggestion would bar those in greatest need of protection from accessing the asylum system at all.


    Finally, all the panelists suggested that DHS and DOJ commit significant resources to assess the fraud risk in the asylum system.


    Ignoring the Elephant in the Room


    Notably absent from these policy recommendations was the hiring of additional Immigration Judges and Asylum Officers. Assuming, for the moment, that asylum seekers waiting in the asylum backlog are a threat to U.S. national security, I can’t help but wonder why the panelists never suggested the only solution that would make it easier for immigration officials to spot fraudulent asylum claims.


    Mark Metcalf tacitly recognized this concept when he highlighted that good cross-examination, either by a prosecutor or an Immigration Judge, can expose fake asylum claims. The same principle holds for intelligent questioning by Asylum Officers in asylum interviews. With the current backlog of nearly 600,000 cases at the Immigration Courts, and another 250,000 claims before the Asylum Offices, each official responsible for testing the credibility of these claims is heavily overburdened. Relieving that burden by hiring more Immigration Judges and Asylum Officers will help these officials spot the fraudulent asylum claims that do cross their paths.


    This solution can lessen the actual problem of immense backlogs and long waits for people seeking asylum. As an added bonus, it would simultaneously address the speculative and over-exaggerated threats that the panelists identified, without denying a path to safety for tens of thousands of people fleeing persecution.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, cis Add / Edit Tags
  4. Exposing the Grandma Menace

    On April 26, the Department of Homeland Security launched its new Victims of Immigration Crime Engagement (VOICE) office. According to DHS, VOICE will “assist victims of crimes committed by criminal aliens.” DHS Secretary John Kelly said in a statement, “All crime is terrible, but these victims are unique—and too often ignored. They are casualties of crimes that should never have taken place—because the people who victimized them often times should not have been in the country in the first place.” I suppose the same might be said of crimes committed by children born of unplanned pregnancies, but I digress.
    Don't mess with these ladies, especially if they haven't had their nap.

    The fact is, most credible reports show that immigrants commit crimes at a lower rate than U.S. citizens. But never mind that. Today, I am concerned with another group whose below-average crime rate masks its otherwise sinister nature. You guessed it, I'm talking about America's grandmothers.


    To shed light on this menace, I've decided to create a new website called VOGUE - Victims Of Grandmothers' Unscrupulous Ethics. The website will track crimes committed by mommoms, babas, memoms, geemas, and savtas throughout our great country. And I'm not just talking about the Little Old Lady from Pasadena, though her reckless driving certainly terrified everyone on Colorado Boulevard. Rather, I want the public to know that America's bubbies are a real threat to our society. So in the spirit of disproving statistics with anecdotes, I present to you the Top 5 nana-related crimes of recent memory. Be afraid. Be very afraid:


    (1) In 2010, a 64-year old Long Island woman was arrested for stealing boxes of jello, replacing the contents with sand and salt, and then returning the boxes for a full refund (of $1.40 each!). According to authorities, Christine Clement disposed of the evidence by cooking up and eating the contents of the boxes she had emptied. Ms. Clement's husband of 40 years served as her get-away driver.


    (2) Griselda Blanco was a drug lord (drug lady?) from Colombia who relocated to Miami where she dominated the violent cocaine-trafficking scene in the 1970s and 1980s. She was supposedly responsible for over 200 murders, including the murder of at least one of her husbands. Ms. Blanco was finally deported to Colombia where she was assassinated at a butcher shop in 2012. Catherine Zeta-Jones is slated to play her in an upcoming movie called The Godmother (fittingly, Ms. Blanco's youngest son is named Michael Corleone Blanco).


    (3) Velma ****ield, also known as "Death Row Granny," used arsenic as her weapon of choice. She confessed to killing four people, including her mother and a boyfriend. It seems likely she also killed at least one of her two husbands. In 1984, she became the first woman executed by lethal injection and the first woman in the United States executed since 1962.


    (4) Another killer who preferred poison was Nannie Doss, known as the "Giggling Granny." All together, she killed four husbands, two children, her two sisters, her mother, a grandson, and a mother-in-law. The first murders took place in the late 1920's and the last occurred in 1953, when she killed her fifth husband by poisoning his sweet-potato pie (given my own feelings about sweet potatos, I am unlikely to die this way).


    (5) Career criminal Doris Payne has been a jewel thief for more than six decades. Her most famous theft involved a $500,000.00, 10-carat diamond ring, which she stole from a jewelry store in Monte Carlo in the 1970's. More recently, in 2015, she allegedly stole another diamond ring valued at $33,000.00 from a store in North Carolina (at age 84!). Her modus operandi is to pretend to be a well-to-do person looking to buy jewelry. She has the clerk take out various pieces, and then somehow causes the clerk to lose track of a piece or two, which she carries away.


    So as you can see, America's grannies are a notorious bunch. Whether they're clandestinely replacing our jello with sand, murdering rival drug lords and annoying husbands, or walking away with large diamonds, they clearly represent a danger to us all. But hopefully, VOGUE will help. By shining a light on a few bad (Granny Smith) apples, we'll soon have you convinced that the whole barrel is spoiled. At least that's what they tell me at DHS.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, dhs, voice Add / Edit Tags
  5. In Trump's America, Are Asylum Seekers at Risk of Arrest?

    A recent case from Florida has raised concern in the asylum-seeker community. On April 26, Marco Coello, a Venezuelan asylum seeker, went to his interview at the Miami Asylum Office. Instead of meeting with an officer to discuss his case, he was detained by Homeland Security officers.
    If you see these guys at your asylum interview, it's probably a bad sign.
    Fortunately, for Mr. Coello, he was released the next day, after various people--including Senator Marco Rubio--intervened on his behalf. An ICE spokesman said that he was detained "because he has a misdemeanor criminal conviction and had stayed in the U.S. longer than his visa allowed."


    I contacted Mr. Coello's attorney, Elizabeth Blandon, and learned that his conviction was for trespassing (he was originally charged with misdemeanor possession of marijuana). I also learned that the Asylum Office issued a letter on the day of his arrest stating that the case had been sent to the Immigration Court. In fact, Mr. Coello's case is not with the court, and the issue of jurisdiction (i.e., who will hear his case--an Asylum Officer or an Immigration Judge) is yet to be worked out. Until that happens, his case remains in limbo.


    Frankly, it is unclear to me why ICE detained Mr. Coello. His conviction was for a minor violation, which is probably not even a deportable offense. One possibility is that ICE targeted him due to the mistaken belief that he had more than one misdemeanor conviction (trespassing and marijuana possession). Another, more conspiracy-minded, possibility is that ICE arrested Mr. Coello because he was a well-known activist from Venezuela. As the situation in Venezuela has deteriorated, the number of asylum cases from that country has soared. Currently, Venezuelans are filing more affirmative asylum applications than people from any other country. Maybe ICE wanted to send a message in an effort to intimidate potential Venezuelan applicants and stem the tide of cases from that troubled country. Normally, I tend to shy away from such conspiracy theories, but in this case, where the applicant is well-known in his community, I am not so sure.


    Mr. Coello's case is not the only instance of an asylum seeker being detained since President Trump took office, and rumors have been swirling about the new hard-line approach of his Administration. We have heard reports about an HIV-positive Russian asylum seeker, who was detained after visiting the U.S. Virgin Islands and then returning to the mainland (the problem here is probably that a person must go through customs to enter the U.S. from the USVI, and he did not get Advance Parole before leaving and trying to return). He was held for a month before being released. There have also been examples of ICE officials arresting asylum seekers who have been charged with crimes when they appear in criminal court. (And of course, there are the thousands of asylum seekers who arrive via the Mexican border without a visa and who are detained when they request asylum--but this began en masse long before President Trump's time).


    It's not just asylum seekers who are being detained. Aliens applying for other USCIS benefits have also been arrested. For example, there were five cases where immigrants were notified to appear for USCIS interviews, and were then detained when they arrived at the USCIS office. Apparently, all five had prior deportation orders from Immigration Judges. There's also the case of a woman who was arrested at a courthouse after filing a protective order against her ex-boyfriend. According to one news source, the woman had an extensive criminal history and had illegally re-entered the United States after being deported.


    In addition to all this, there is the now-famous (at least in immigration circles) case from February of a domestic flight from San Francisco to New York where ICE agents checked IDs for everyone disembarking the plane (ICE claims that the searches were "consensual"). Supposedly, ICE was searching for an alien with a criminal record. Turns out, he wasn't even on the flight.


    So what does all this mean? Do asylum seekers risk arrest when they appear for their interview? Or when they show up for a court hearing? Or when they travel domestically? The short answer, at least for now, is no, no, and no.


    First, except for the person returning from the USVI, the common denominator in the above cases is that all the aliens had a criminal conviction and/or a deportation order. If you do not have a criminal record or a removal order, there is no reason to believe that ICE will detain you if you appear for an appointment, court date or domestic flight. Indeed, except for the examples above involving criminal convictions and deportation orders, I have not heard about any asylum applicants being detained.


    If you do have a criminal conviction (or even an arrest) or a removal order, then there is some risk, but it's unclear exactly how to assess that risk. How likely is it that a person with a criminal record or removal order will be detained if they appear for an interview? Does the likelihood of detention increase with the severity of the criminal conduct? I do not know, and I am not confident that the few examples discussed above help us evaluate the chance of trouble. But given that there is some risk, it seems worthwhile for anyone with a criminal conviction or a removal order to consult with an attorney before going to an appointment with USCIS.


    If I had a conviction or a deportation order, and I was scheduled for an asylum or other USCIS interview, I would want to know a few things from my lawyer. First, I would want to know the likelihood of obtaining the benefit that I have applied for. If my case is very weak and unlikely to succeed, maybe I would be less willing to appear for an interview where I risked detention. Also, I would want to know how seriously the government views my criminal conduct. If the conviction is very minor, I would expect that the likelihood of ICE detention is low (but maybe not, as Mr. Coello's trespassing conviction illustrates). If the conviction is serious--and many convictions subject an alien to mandatory detention--I would want to know that too. In fact, I would want to know all this before I even apply for asylum or other immigration benefit. Why start the process when it is unlikely I will be able to successfully complete it, especially if applying for the benefit exposes me to possible arrest?


    Every person must make his or her own decision, weighing the risk and reward of applying for an immigration benefit. But if you have been arrested or convicted of a crime, or if you already have a deportation order, it would be wise to talk to a lawyer before you file an application or attend an interview with USCIS.

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