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Possibly the most common question I hear at initial consultations with asylum seekers is, "What are the chances that I will win my case?" It's a reasonable question. People want to know the likelihood of success before they start any endeavor. The problem is, it's impossible to answer this question. Why is that?
The other Impossible Question: "Does this dress make me look fat?"
One reason is mathematical. Probabilities are tricky to calculate and even more tricky to understand. Also, it is very hard to apply probabilities in a meaningful way to a single event. What does it mean, for example, when the weather report shows a 30% chance of rain? If you run 100 computer simulations of the weather, it will rain 30 times. But in the real world, it will either rain or it won't. The problem is that we do not have complete information to start with, and that there are too many variables to predict precisely how the weather will evolve over time. Without sufficient information, we have to approximate, and we are left with a range of possible outcomes and probabilities. As Niels Bohr observed, "Prediction is very difficult, especially if it's about the future."
Another difficulty is that predicting case outcomes involves human beings, and we are a notoriously capricious species. At the outset of a case, the lawyer may not know whether the client can get needed evidence, or whether she can remember her testimony, or how a witness will behave. Also, the lawyer may not know who the fact finder will be (with Immigration Court cases, we usually know in advance; for Asylum Office cases, we never know until the day of the interview). Also, what if the fact finder is in a particularly good or bad mood on the day of the case? Or what if she is hungry during the case (one Israeli study famously correlated favorable parole decisions to whether the judge had recently eaten lunch!)? These "human factors" can greatly affect the decision, and few of them can be known in advance, which again makes predicting difficult.
That's not to say we know nothing about the likelihood of success. For Immigration Court cases, there is data available about the grant rates of individual Judges. Also, there is some data available about Asylum Office grant rates. Of course, all of this is very general and does not necessarily bear much relationship to the likely outcome in a given individual's case, but I suppose it's better than nothing.
As a lawyer, once you get a sense for asylum cases, you can at least give the client some idea about the outcome. I can tell a strong case from a weak case, for example. If the client has a lot of credible evidence, has suffered past persecution on account of a protected ground, and faces some likelihood of future harm, the client has a strong case. The most I will say to such a prospective client is that, "If the adjudicator believes that you are telling the truth, you should win your case." I might also say that since the corroborating evidence is strong, it is likely that the adjudicator will believe the claim.
I do think there is a basic human desire behind the question about the chances for success, and that is the desire for certainty. Asylum cases now take years, and it is very difficult to live your life for so long under the threat of deportation. When the clients ask about the likelihood of success, I know part of what they want is reassurance. Even if the case is weak, they want to feel like they have a chance. They want to feel that what they are building in the U.S. while they wait for a decision will not all be lost. How, then, do we balance the need for certainty with providing an honest evaluation of the case?
For my clients, I try to give them both honesty and hope. In the beginning, I give the client my honest assessment of the case and the likelihood of success. Knowing my assessment (whether it is good or bad), if the client decides to go forward, my focus shifts to creating the strongest case possible with the facts and evidence available, and to helping reassure the clients so they feel some hope. I try to encourage the client to do what is within their power to make the case better: Gather evidence, talk to witnesses, find experts, etc. At least this helps empower the client a bit, and it gives them some agency over their case outcome.
Different lawyers do things differently, and there are probably many "right" ways to balance realism and hope. There are also wrong ways. Any lawyer who "guarantees" you will win an asylum case is a lawyer you should avoid. No lawyer can guarantee a win because we do not make the decisions--the government does. Also, lawyers who make dubious promises ("I am good friends with your Judge, so I can get you a quicker hearing date") are probably lying to get your business. Be careful, and remember that offers that seem too good to be true probably are. For all its flaws, the American immigration system is largely free from corruption. Lawyers don't have special relationships with adjudicators that can change outcomes or speed adjudication. When a lawyer oversells hope at the expense of realism, you are safer to seek a different attorney; one who is more interested in telling the truth than in selling you his services.
So when a prospective client asks me the chances for success, I'll try to give the best evaluation I can, so that the person can make an informed choice about whether to file an asylum case. Once the case is started, I will try to address weakness and gather evidence to maximize the chances for a win. I will also try to encourage the client, so that she has some hope during the long wait.
Originally posted on the Asylumist: www.Asylumist.com.
Update: March 24, 3:03 pm.
For more information on the topic discussed below, see David Nakamura, reporting in the Washington Post on March 24:
Blame game: Trump casts immigrants as dangerous criminals, but the evidence shows otherwise
(Sorry, I do not have a direct link. Please go to Google to access.)
The WP article describes an intense and concerted attempt by the Trump administration to brand mainly Mexican and other Latin American immigrants as criminals, something which has a very dangerous and disturbing 20th century historical precedent discussed below.
Meanwhile, while ICE continues to focus on how many Mexican and other Latin American immigrants are being charged with or convicted of crimes such as DUI, traffic violations, minor drug offenses or possession of "obscene material" (see my discussion of the ICE report described below), two thirds of Americans surveyed want an independent commission to investigate the link between Trump's campaign and Russia, according to the latest poll.
Which of these two issues, Trump's alleged ties with Russia, or the number of petty crimes that may have been convicted by Mexican immigrants, are more important for the safety of America and the survival of our democracy?
My original comment follows:
In my ilw.com comment on March 3, I wrote about the disturbing parallels between Donald Trump's February 25 executive order requiring DHS to publish lists of crimes which immigrants have been convicted for or charged with committing, and lists of crimes allegedly committed by Jews which appeared in Germany prior to 1945, especially in the notorious newspaper Der Stuermer, whose publisher, Julius Streicher, was executed as a war criminal after the end of WW2. See:
I am not the only commentator who has made this comparison. See David Jose Camacho, writing in The Guardian, March 22:
Trump's weekly list of 'immigrant crimes' is as sinister as it sounds
Nor was the extreme case of Germany prior to 1945 by any means the only example of targeted ethnic groups being stigmatized as "criminals". America also has a long and well documented history of branding Italian, Irish, Jewish and other unpopular immigrant groups as criminals in order to justify prejudice and discrimination against them.
What is most noteworthy about at least the first of the weekly lists announced by ICE pursuant to Trump's executive order, however, is how trivial most (but not all) of the offenses on the list actually are.
It is almost as if the purpose of Trump's crime list publication order was to show that while Mexican and other Hispanic and Caribbean immigrants may have a high rate of traffic offenses and possession of drugs (or, horror of horrors, even "obscene" material - that is also on the list!), most of the offences listed in at least the first ICE weekly report, for the period January 28 to February 3, 2017 were not for violent or dangerous crimes.
This is a far cry from Donald Trump's campaign attacks on Mexican and by extension other Latino immigrants as 'criminals" and "rapists". and his mass deportation executive orders as president ostensibly targeting "criminal aliens".
The full 35 page ICE report can be accessed by following the link on the word "report" in the above cited article in The Guardian. A more detailed discussion of the report follows below.
The report, ostensibly, is not intended to be a crime list per se, but a list of counties in various US states ("non Federal jurisdictions") which have released non-US citizens (described in the report by the pejorative term "aliens" which first appeared in America's laws more than 200 years ago, when attitudes toward residents or immigrants of non-European ancestry were quite different from what they are now) which have released non-US citizens convicted, or even merely charged, with various crimes despite ICE detainers which had been placed on them.
On the surface, therefore, the report is directed against the various law enforcement agencies around the country which refuse to honor federal detainers.
But when one looks at the actual list of convicted or alleged crimes by the individuals who were released, it is apparent that ICE did not omit listing the country of origin in each case, so it would be clear which countries and parts of the world the "aliens" accused or convicted of crime on the list come from.
Not surprisingly, in view of Trump's campaign speeches, the defendants listed (by offense, not by name) are overwhelmingly from Mexico and Central America.
So what kind of offenses are included in the list? I looked at a random sampling of 10 pages from the list (6 though 15), showing a total of 110 cases where a foreign citizen was released despite a federal detainer. By far the most frequently listed offense was DUI.
Other listed offenses included, "Traffic Offense", "Failure to Appear" "Violation of a Court Order", "Probation Violation" and "Indecent Exposure".
Yes, ICE actually attempted to deport a Central American immigrant for Indecent Exposure - maybe on the same plane as the South American immigrants convicted of "Possession of Obscene Material" and of a "Traffic Offense", respectively!
This is not to say that all of the charges or convictions listed were minor. There were a number of Assault, Aggravated Assault and Sex Assault cases as well, as well as Domestic Violence cases. Clearly, not every immigrant on whom ICE has put a detainer is necessarily a candidate for sainthood.
But one thing is clear from the above sample. America now has a sitting president (the first one I am aware of in my lifetime, which has included 13 presidents so far) who is now under investigation by the FBI himself - for his alleged ties to Russia.
Clearly, this president wants Americans also to be aware of the potential danger to our society and our country posed by Mexican immigrants charged with DUI, traffic offenses and "Possession of Obscene Material".
Roger Algase is a New York Immigration lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards for more than 35 years. Roger's email address is firstname.lastname@example.org
Updated 03-24-2017 at 04:07 PM by ImmigrationLawBlogs
Update: March 22 as of 2:57 pm:
POLITICO reports that Donald Trump has sent warm greetings to the people of Iran for their Now Ruz holiday, the Iranian New Year. He praised Iran's multi-religious heritage and also commended"many Iranians who have come to our country in recent decades to make a new start in a free land."
If Trump's latest ban on entry to the US by some 100 million citizens of six (formerly seven) almost 100 per cent Muslim countries is upheld by the federal courts, there will not be very many more Iranians coming to America to "make a new start in a free land", since Iran is on the banned list.
My original comment appears below.
Much of the debate over the original and current versions of Trump's executive orders barring an estimated 100 million citizens of six 99 per cent Muslim countries from entering the United States without any showing that they have terrorist connections or individually present any threat to America is focused on the alleged lack of Constitutional protections for the rights of foreign citizens seeking to visit, study or work in this country temporarily.
In a recent ilw.com post, I introduced the thorny and complicated subject of the "Plenary Power" over immigration doctrine which the Supreme Court devised back in the 1880's to make it easier to discriminate against Chinese immigrants by keeping them out the the US on purely racial grounds, just as Trump is now trying to keep Muslims from the affected Middle Eastern and African countries out for primarily religious reasons. I will have more to say about "Plenary Power" in a future comment.
However, there has been less discussion about the specific ways in which Trump's Muslim ban is harming the Constitutional rights of Muslim US citizens to religious freedom and equal protection of the law, by making them in more subject to discrimination and threat of violence in reality, not just as a matter of personal feeling, as alleged, for example in the complaint filed in federal district court by the State of Hawaii and the individual Muslim plaintiff in that case.
Now comes a report by the Institute for Social Policy Understanding which adds substance to these fears, just as the Supreme Court, just over 60 years ago, found that there was a substantive basis for the feelings of African-American children that they were not equal to white children caused by the school segregation laws of that time.
The above report includes four key findings, all of which are at least in part the result of Trump's presidential campaign demonizing and scapegoating Muslims around the world, including American Muslims, as potential terrorists, which undeniably played a major influence in the genesis of Trump's Muslim entry ban orders.
These findings are as follows:
1) Muslim children face the most religious-based bullying in school.
2) Muslim Americans are more scared for their personal safety than any other religious group.
3) Muslims are facing additional screening at the border more than any other religious group.
4) More Muslims report religious-based discrimination than any other group.
Much as the supporters of Trump's ban on entry to the US by some 100 million people for no reason other than they happen to live in six overwhelmingly Muslim countries, none of whose citizens has ever been found to have committed an act of terrorism in the US (yes, some of these countries have terror group problems to be sure, but so do many other Muslim and non-Muslim countries that are not on the banned list) would like to pretend that only the rights of foreign citizens are affected by Trump's executive orders, the reality is that these orders, taken together with Trump's consistent attacks on Muslims both before and after taking office as president, are doing irreparable harm to the rights of millions of Muslim US citizens.
A summary and link to the full report is available at
In a summary of the report, entitled:
American Muslim Poll 2017: Muslims at the Crossroads,
the authors, Dalia Mogahed and Youssef Chouhoud, refer to the "deeply divisive presidential election cycle" and an uptick in "negatively charged rhetoric and discriminatory acts" against "not just Muslims already in the United States, but also toward those who year to make America their home."
Even if Trump had not threatened during the presidential campaign to put US Muslims and their places of worship under surveillance, his targeting of an estimated 100 million people for exclusion from the US for no other reason than they happen to live in countries with almost 100 per cent Muslim populations (which, like many other countries not on the list, have had to deal with the presence of terrorist supporters or organizations in their midst), is adding to the fear, hatred and suspicion with which millions of innocent American Muslims are being regarded by their co-US citizens (and by US border control agents).
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards for more than 35 years. Roger's email address is email@example.com
Updated 03-22-2017 at 01:57 PM by ImmigrationLawBlogs
by Chris Musillo
Yesterday we posted about a new problem, US CBP officers were denying advance practice nurses’ applications for TN-1 visas. The reports said that at least one US CBP officer was quoting a “change in policy”. AILA has now confirmed that there is no policy change. The law remains: advance practice nurses qualify for TN-1 visas.
In our blog post, we called on US CBP quickly to clarify whether there was or was not a policy change. To this extent, US CBP acted swiftly and should be commended for their quick action.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
Updated 03-21-2017 at 09:26 AM by CMusillo
In another ominous indication that Donald Trump's attempts to ban more than 100 million citizens of six 99 per cent Muslim countries from coming to the United States have very little to do with national security, and a great deal to do with changing America's immigration demographics back toward the Europeans - only policies of the 1924 Johnson-Reed Immigration Act (which Trump's AG Jeff Sessions praised in a 2015 immigration manifesto, and which Senior White House Adviser Stephen Bannon's Breitbart News has also supported), The Guardian reports that every single one of the between 60 and 100 African applicants for visas to attend an annual conference on US-African business and trade at the University of Southern California was refused a visa, even though none of their approximately a dozen different countries of origin was covered by the ban (which the federal courts have temporarily blocked from taking effect in any event).
The internationally renowned UK newspaper writes:
"The African Global Economic and Development Summit, a three-day conference at the University of Southern California (USC), typically brings delegations from across Africa to meet with business leaders in the US to foster partnerships. But this year, every single African citizen who requested a visa was rejected, according to organizer Mary Flowers."
The Guardian continues:
"The problems for the trade summit mark the latest example of restricted travel to the US under Trump, whose controversial immigration policies and rhetoric have impacted a wide range of industries and communities. Soccer players, musicians, doctors, tech workers, protesters and others from across the globe have been denied access to the U.S., which has also experienced a slump in immigration since Trump's inauguration."
With regard to the countries of origin for the applicants who were denied visas, The Guardian writes:
"Rejected participants at the trade summit came from Nigeria, Cameroon, Angola, Ethiopia, Sierra Leone, Guinea, Ghana, South Africa and more, according to Flowers."
Even though Trump's latest six Muslim country ban is not currently in effect, The Guardian also reports than none of the rejected applicants were from any of the three African countries (Lybia, Somalia and Sudan) that were on the banned list.
According to the same report, many of the applicants who had already registered for the conference, which took place with only 50 to 75 participants instead of the 150 to 200 who usually attend, were refused visas after only short interviews even when they brought extensive documentation, such as bank statements and property records.
According to the same article, The State Department has refused to give any explanation for or to discuss its actions in banning visitors to the US from an entire continent.
It appears that the issue of arbitrary bans on entry to the US from parts of the world which may be out of favor with the Trump administration has escalated beyond entry from only half a dozen countries, for which there may have been at least the illusion of a pretext, however contrived, for a blanket exclusion.
According to the report, Mary Flowers also stated:
"I don't know if its Trump or if its the fact that the embassies that have been discriminating for a long time see this as an opportunity, because of the talk of the travel ban, to blatantly reject everyone...These trade links create jobs for both America and Africa. It's unbelievable what's going on."
There was a famous saying in ancient Rome.
Ex Africa semper aliquid novi - "There is always something new out of Africa."
One could update that saying to add that there is always something new from Africa - except visitors to an America in the Donald Trump era in which immigrants of color are feeling increasingly unwelcome.
For those who still believe in and support America's ideal of non-discrimination on the basis of race, religion or national origin which has been the basis of our immigration laws for the past half century, there is another Latin saying, taken from Cicero's famous address against Cataline before the Roman Senate, which might well be addressed to our 45th president and the nationalist advisers at the top of his hierarchy:
Quo usque tandem abutere...patientia nostra?
"How much longer will you continue to abuse our patience?"
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School who has been representing mainly skilled and professional immigrants from diverse parts of the world for more than 35 years. His email address is firstname.lastname@example.org
Updated 03-23-2017 at 04:06 AM by ImmigrationLawBlogs