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  1. Too Little, Too Late

    The Obama Administration's September 30, 2014 announcement that refugee protection for certain minors fleeing Honduras, El Salvador, and Guatemala will be provided via in-country processing may be a welcome acknowledgement that these Central American countries belong on the United States refugee resettlement list, but it will do little for most of today's refugees.

    In-country (as opposed to third-country) processing is not a preferred method for adjudicating refugee status. This is particularly true when the "persecutors" are playing quasi-governmental roles, and/or are insurgents who have invaded or taken over the government.

    When I was in Haiti in 1993 and observed the start of U.S. in-country processing in that country, applicants were required to walk into the downtown Port au Prince building in broad daylight for their appointments with U.S. officials. Inside the offices, multiple interviews were conducted simultaneously in a large conference room. To say the least, the process lacked confidentiality protections, a serious flaw in an environment riddled with spies and informants (and gangs, and paid-off police).

    Although recognition of the need to allocate refugee resettlement numbers to Central American countries is important, it will not end flight to the United States from conditions of persecution. Moreover, contrary to what many appear to believe, coming to the US and seeking asylum upon arrival is not the "wrong way," as opposed to the "right way" of applying through an in-country process. Our statute expressly contemplates that asylum seekers in flight from persecution may arrive at a port of entry or border crossing and apply for asylum. That is consistent with the United Nations Refugee Convention and Protocol, with which the U.S. is expected to be in compliance (and is in compliance, with some exceptions, including the U.S.-added obstacle requiring asylum seekers arriving at our borders to first pass a credible fear test before being allowed to apply for asylum).

    As for the 4,000 refugee slots provided, it is grossly inadequate and ultimately unlikely to benefit more than approximately 250 children. It certainly will not stop children from fleeing to the U.S. and cannot justify their repatriation. To make refugee protection through in-country processing a meaningful alternative to asylum requests at the border, the number would have to be increased dramatically.

    Another flaw is in the apparent requirement that the child must have a "lawful" relative in the United States. The definition to be applied to this relationship requirement is unknown at this time, but is likely to be the accepted “qualifying family member” term applicable to visa petitions and waivers. Although it is understandable that the U.S. is interested in reunifying these children with their families, many of the parents of minors now facing persecution in their home countries entered the U.S. without papers and are not lawfully in the U.S., foreclosing reunification for the vast majority of children, if this requirement is enforced.

    Parents who are lawfully present in the U.S., may have included their child as a derivative on their own immigrant visa application, or petitioned for him/her, so that the small number of refugee spots may be distributed to children of lawful permanent residents holding not-yet-current priority dates after February 2013. While it might be possible to argue for an expansion of the definition of "lawful" to include children of parents who have been granted asylum (asylees), or parents who have TPS, the number of available spots is so small that (unless it is significantly increased) the numbers will be exhausted quickly.

    I support designating as refugees the children who are fleeing the rampant violence, danger, corruption and outright persecution perpetrated by the gang insurgencies in Honduras, El Salvador and Guatemala. Much as I dislike being a naysayer, this gesture is not a panacea for any of it.

    (c). 2014. All rights reserved, Lory D. Rosenberg

    Updated 10-03-2014 at 03:05 PM by Lrosenberg


    by , 10-01-2014 at 02:25 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The State of Massachusetts has hit upon an ingenious plan to widen the path for H-1B workers and employers, as reported by CNN/Money. By using the H-1B “concurrent” employer program and coupling it with the H-1B “cap exemption” for Universities, Massachusetts will help foreign entrepreneurs obtain H-1B visas to work in Massachusetts.

    The plan appears to work like this: the Massachusetts Technology Collaborative will vet prospective H-1B entrepreneurs. When an innovative entrepreneur is identified, the Collaborative will find a Massachusetts University to sponsor the H-1B worker under the “cap exemption” rule. This rule says that an H-1B worker who is sponsored by a University is not subject to the H-1B lottery.

    Because there is no set required number of hours that the H-1B worker must be employed at the University, the expectation is that the H-1B worker will only work 8-10 hours per week at the University.

    Presumably, the H-1B start-up will then sponsor the H-1B worker for a “concurrent” H-1B visa. The H-1B employee will spend the rest of the work-week employed by the start-up.

    Without the assistance of the University, the plan would not work because the start-up’s H-1B sponsorship would normally be subject to the H-1B lottery. The plan is an elegant and creative one to deal with an outdated H-1B cap.

    There is no reason that Massachusetts has to limit this plan to entrepreneurs. It could also be used to help fill critically short healthcare occupations.

    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at or You can also visit us onFacebook and follow us on Twitter.
  3. Back(log) to the Future: 60,000+ People Stuck in the Asylum Backlog

    I recently participated in a panel discussion at the Congressional Black Caucus Foundation in Washington, DC. The panel was hosted by Congresswoman Yvette Clarke and featured speakers from academia, non-profits, government, and the private bar. The introductory speaker was the Ambassador of Jamaica, who (to my surprise) knew more about asylum law than most immigration attorneys. The focus of the panel was on asylum seekers of African decent (so, generally, people from Africa, the Caribbean, and Latin America).

    Déjà queue - The backlog is back. Or maybe it really never went away.

    One purpose of the panel was to bring attention to asylum seekers and refugees from Africa and the African diaspora. According to Jana Mason of UNHCR, despite the recent turmoil in the Middle East, the plurality of the world's refugees and internally displaced people come from Africa. This is significant because in the United States, there is not a strong constituency to support these people (as there is for Cubans, for example). The result is that African and diaspora asylum seekers often receive less attention and less support than asylum seekers from other places. The CBC hopes to improve our government's policies towards African asylum seekers, and our panel was part of that effort.

    Panel speakers also touched on issues that affect asylum seekers in the U.S. more generally. The most important comments in that regard came from John Lafferty, the Chief of the Asylum Division at USCIS, who spoke--among other things--about the backlog (for some background on the backlog, check out my previous post).

    The statistics Mr. Lafferty cited were sobering: 55,000 affirmative asylum cases filed in FY 2014, over 50,000 credible fear interviews, and a nationwide backlog of 60,000 cases. USCIS estimates that it might take three to four years to resolve the backlog, and presumably that's only if unforeseen events don't cause additional delay.

    One piece of good news is that USCIS has been working hard to deal with the situation. In the last year or so, they've grown from 273 asylum officers to 425 officers, and they plan to hire additional officers going forward. I must say that my experience with the new officers has been a bit mixed. Most are excellent--professional, courteous, knowledgeable, and fair. A few, though, seem to be unfamiliar with the law or with basic interview techniques. Hopefully, as they gain more experience, these kinks will be worked out (and hopefully not too many legitimate refugees will be denied asylum in the mean time).

    Despite USCIS's efforts, the backlog has continued to grow. At this point, even if no new cases enter the system, it would take over one year to review all 60,000 cases. And of course, new cases continue to enter the system all the time. Given the large number of people stuck in the backlog, I'd like to offer a few suggestions on how to make life easier for those who are waiting:

    , and I think most importantly, USCIS should give priority to applicants with family members who are overseas. This can be done in at least two ways: (1) Review existing I-589 forms, and where there is a spouse or child who is currently not in the U.S., give that case priority; and (2) when a backlogged case is (finally) approved, give priority to any I-730 petition for family members following to join.

    , and this would probably require a legislative fix so maybe it is pie in the sky, for any case that USCIS knows will enter the backlog, allow the applicant to file immediately for her work permit (under existing law, the asylum applicant must wait 150 days before filing for a work permit).

    , instead of issuing the work permit (called an employment authorization document or EAD) for one year, issue it for two years (or more). A two-year EAD would make life easier for asylum seekers. Renewing the permit every year is expensive and processing delays sometimes result in people losing their jobs and driver's licenses (which are tied to the EADs).

    , devote more resources to backlogged cases, even if this means slowing down the process for newly-filed cases (backlogged cases have been skipped; USCIS processes new cases before backlogged cases). Even if only a few backlogged cases were being adjudicated, this would at least give hope to the thousands who are waiting without any sign of progress. Also, it would be helpful for people to have some sense of when their cases will be adjudicated. USCIS should endeavor to release as much information as available about their efforts to resolve the backlog. Given that each Asylum Office has its own website, perhaps the information could be posted there and updated regularly.

    I recognize that USCIS's situation is difficult and unprecedented, and that they have been overwhelmed by the large numbers of new applications and credible fear interviews. But from my view of things, the situation for those who are waiting is pretty rough. These modest suggestions would help to mitigate the difficulty for the most seriously affected, and would give some hope and relief to the others.

    Originally posted on the Asylumist:
    Tags: asylum, backlog Add / Edit Tags
  4. Polis, Grijalva, Cicilline, Lofgren Call On Obama to Protect LGBT Immigrants

    by , 09-30-2014 at 03:30 PM (Matthew Kolken on Deportation And Removal)
    Media Release: September 30, 2014

    Contact: Scott Overland (Polis), (202) 225-2161
    Dan Linder (Grijalva), (202) 225-2435
    Andrew Gernt (Cicilline), (202) 225-4911
    Peter Whippy (Lofgren), (202) 225-3072

    WASHINGTON, DC — On Monday, Representatives Jared Polis (CO-02), Raul Grijalva (AZ-03), David Cicilline (RI-01), and Zoe Lofgren (CA-19) sent a letter signed by forty-four Members of Congress to President Barack Obama urging him to include protections for LGBT immigrants as he develops and implements new executive actions on immigration.

    The Representatives recognized that the President alone cannot fix our nation’s broken immigration system, but called on him to use the executive powers he does have to address the unique challenges faced by LGBT immigrants who currently face additional complications, including familial separation and gender-based violence in detention.

    “By exercising your power to implement administrative policies that take into account the uniquely dangerous and difficult circumstances facing LGBT immigrants, you have the ability to protect thousands of individuals immediately,” the Representatives wrote. “[I]t is imperative that you use the tools at your disposal to ensure that families stay together, that immigrants are not put in harm’s way, and that LGBT people are not subjected, at the hands of the American government, to the dangers from which they have fled.”

    There are currently 267,000 LGBT immigrants living in the United States, many of whom came to this country to escape threats and extreme violence. Existing Department of Homeland Security prosecutorial discretion policies have failed to implement a meaningful balancing test that properly weighs strong equities against negative factors, making at-risk LGBT immigrants much less likely to qualify for protection. In addition, LGBT immigrants are routinely deported back to nations in which their sexual orientation or gender identity places their lives at risk.
  5. BIA Twists Logic To Reach Right Asylum Social Group Result, Pt. 2. By Roger Algase

    Updated, September 30, 10:36 am:

    In my September 29 Immigration Daily "blogging", I discussed the BIA's barely coherent attempt to define the three requirements for showing that one is a member of a "social group" for asylum purposes in the recent case of Matter of A-R-C-G, 26 I&N Dec. 388 (August 26, 2014).

    My September 29 comments were directed only at the issue of what constitutes a "social group" (sometimes referred to a "particular social group", or "PSG"). I only tangentially mentioned the related, but distinct, requirement in asylum cases of showing that one has a fear of persecution "on account of" membership in the PSG in question. This is sometimes called the "nexus" requirement.

    However, before someone seeking asylum can even reach the "nexus" issue, he or she must show that the alleged PSG is recognizable for asylum purposes. If the claimed PSG does not actually exist as a matter of asylum law. it does not matter whether or not one was persecuted because of membership in the social group in question.

    In the above BIA case, the DHS had conceded that the woman seeking asylum had met the "nexus" requirement, i.e. that the claimed persecution was "on account of" her membership in the alleged PSG. Therefore, the decision did not discuss the "nexus" requirement, except to make a general statement that whenever "nexus" is in dispute it "will depend on the facts and circumstances of the individual claim".

    Its decision only dealt with the question whether the claimed PSG, i.e. "married women in Guatemala who are unable to leave their relationship" could be recognized as a PSG for asylum purposes. (As I pointed out in my previous comment, the DHS had conceded this point as well, but the BIA decided to discuss it anyway.)

    My colleague and distinguished asylum law authority Nolan Rappaport, in his comment to my above September 29 post, provides a detailed and erudite discussion of the "nexus" issue.

    However, since "nexus" was not an issue in the A-R-C-G- case (having been conceded by the DHS, as pointed out above), and was not discussed by the BIA in that case except in passing, my September 29 comments about the above case did not concern that issue and it will not be covered further in my discussion of that case, which is limited to the issue that the BIA actually dealt with in its decision, namely what constitutes a PSG.

    This discussion will be continued in my forthcoming comments.

    Nolan also mentions the Violence Against Women Act (VAWA) as a possible alternative to asylum as a remedy for victims of spousal abuse. But VAWA only applies to victims (of either sex) of abuse at the hands of USC or LPR spouses. It does not cover victims of abuse resulting from marriage or other relationships with people are not US citizens or permanent residents. Therefore, VAWA cannot be substitute for asylum.

    Nolan has suggested expanding VAWA in a personal communication to me. I fully support his idea.

    To be continued.

    Updated 09-30-2014 at 10:47 AM by ImmigrationLawBlogs

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