We knew this was coming. On March 7, 2018, Attorney General Jeff Sessions announced plans to revisit a Board of Immigration Appeals (“BIA”) case called Matter of A-B-, 27 I&N Dec. 227 (BIA 2018), which granted asylum to a victim of domestic violence from El Salvador. Now, the Attorney General has reversed A-B- and issued a wide-ranging opinion that seeks to limit asylum for victims of domestic violence and other criminal activity.
There is a lot to say about the AG’s decision, but here I want to focus on two issues: (1) Who is affected by the decision, and (2) Why the decision may not have the broad impact that the AG seems to have intended.
Matter of A-B- most immediately impacts victims of domestic violence. Since 1999, the law related to asylum for DV victims has been evolving. Different lawyers and government agencies have worked to crack open the door for such applicants. The end result of their efforts was Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which created a convoluted path for victims of DV to obtain asylum. I think it was fairly apparent that A-R-C-G- was a house of cards, waiting for a hostile Administration to knock it down. And in Matter of A-B-, Mr. Sessions has done just that–he has overturned nearly two decades of evolving precedent, and overruled A-R-C-G-.
How, exactly, Mr. Sessions has attempted to block DV asylum seekers is important. To win asylum, an applicant must not only show that she faces harm; she must demonstrate that the harm she faces is on account of a protected ground, such as race, religion, nationality, political opinion or particular social group (“PSG”). So if a persecutor wants to kill you in order to steal your money, that is usually not a basis for asylum. But if the persecutor wants to harm you because he does not like your political opinion, or race, or religion, or PSG, that can form the basis for an asylum claim. A-R-C-G- said that “married women in Guatemala who are unable to leave their relationship” can constitute a PSG, making such people potentially eligible for asylum (assuming they met a host of other requirements).
In A-B-, the Attorney General is saying that this PSG formulation was erroneous, and so victims of DV can no longer use it as a basis for asylum. Such victims can still attempt to win asylum based on other protected grounds (maybe they are a member of an acceptable PSG, for example, or maybe the persecutor seeks to harm them due to their religion or for some other “protected” reason). But the fact is, many of these (mostly) women will no longer qualify for asylum, and will be sent home to face whatever “vile abuse” (Jeff Sessions’s words) that is awaiting them.
The impact of A-B- is clearly meant to reach beyond the realm of DV asylum, but how it will be interpreted outside the immediate circumstances of the case is unclear (at least to me). For example, in the decision, Mr. Sessions writes, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Indeed, the decision makes multiple references to “gang violence,” but as far as I can tell, gang violence is not an issue in the case. This is strange, since normally, courts decide issues that are before them; not abstract issues that are obliquely related to the subject of the case.
So if they are presented with an asylum claim involving “gang violence,” how will Immigration Judges and Asylum Officers apply Matter of A-B-? It’s difficult to know. The AG’s vague pronouncements about “gang violence” are not easily translated into legal guidance for adjudicators. Of course, adjudicators who want to deny a case can find additional support for such a decision here, but those who want to grant a case are not blocked from doing so.
There’s also the more general issue of “persecution based on violent conduct of a private [as opposed to government] actor,” which could include harm against LGBT individuals, FGM, threats from terrorists groups, etc. The AG states that in such cases, an asylum applicant “must show more than difficulty controlling private behavior… The applicant must show that the government condoned the private actions or at least demonstrated a complete helplessness to protect the victims.” In other words, says the AG, “Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.” Maybe I’m missing something here, but this is the exact same legal standard we’ve had since the asylum statute was enacted. As I read Matter of A-B-, I don’t expect big changes for people seeking asylum based on sexual orientation or FGM, or those fleeing terrorists, even though these cases typically involve persecution by non-state actors.
In fact, though Matter of A-B- will block many DV victims from obtaining asylum, I am not sure that its effects will be broadly felt. Much of the decision is hyperbole without substance: “Generally,” asylum claims based on persecution by non-state actors will fail. Generalizations like this aren’t guidance for adjudicators; they are propaganda. And then there are helpful chestnuts like this:
Neither immigration judges nor the Board may avoid the rigorous analysis required in determining asylum claims, especially where victims of private violence claim persecution based on membership in a particular social group…. Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.
In other words, adjudicators are supposed to follow the law. No duh.
I don’t know why the AG used Matter of A-B- to make a broad statement against people fleeing violence from non-state actors (as opposed to limiting his ruling to the facts of the case). But the decision’s platitudes and generalizations are not conducive to the type of legal precedent that can guide decision makers.
Perhaps Mr. Sessions hopes that his anti-asylum rhetoric and exhortations to “follow the law” will set the tone for adjudicators at the Immigration Courts and Asylum Offices. Maybe he believes that his disdain for immigrants can somehow be transmitted through the bureaucracy to the men and women deciding cases. But in my experience, IJs and Asylum Officers are not lemmings who exist to do the AG’s bidding. They are adjudicators empowered to interpret the law.
After Matter of A-B-, some applicants will have a tougher time obtaining asylum; others will be unaffected. In a strange sense, this decision gives me hope. If this is the best Mr. Sessions can do, it is not enough to end asylum as we know it. Thanks to Mr. Sessions, many domestic violence victims will be returned to face harm, but our country will continue to offer protection to many others. For that, I am thankful.]]>
It’s not easy to be an asylum seeker these days. Between the government’s efforts–often disingenuous–to undermine asylum claims, the long delays, and the unnecessary bureaucratic obstacles, the process has become more stressful and more unfair than at any time in recent memory.
It’s also become more difficult for attorneys who represent asylum seekers. Given the government’s unpredictability, we can’t easily advise our clients or evaluate their cases. It’s also harder to help them understand the process and to predict how long they will wait for an interview or a decision. In other words, it’s more difficult to serve as a counselor for our clients.
It’s also more difficult to offer our clients encouragement and hope. The long delays and hostile environment have made the asylum process (and the immigration process in general) more stressful. Clients need a sense of hope, and they need to feel someone is on their side. Hence, attorney as cheerleader.
Fulfilling both jobs—counselor and cheerleader—is not easy, and at times, the two roles can be contradictory. So how can we as lawyers provide honest counsel and still offer our clients hope?
First, I have found that even clients in the most dire circumstances appreciate hearing the unvarnished truth about their cases. Especially in the beginning, when it is time to evaluate the case and present the client her options, it is important not to sugarcoat the odds of success or gloss over potential obstacles. I sometimes have a tendency towards pessimism when I evaluate a case, as I don’t want to give the client unrealistic expectations. I also want the client to know what she is up against, so she can make her own decisions about how to proceed.
Also, of course, it is very important for the client to understand the problems in the case. Is there a one-year bar issue? Or other bars to asylum? Are there potential credibility problems? Is there important evidence that will be difficult to obtain? All this we need to know, so that the client and the lawyer together can prepare the strongest possible case.
The client needs to understand the process of seeking asylum, in all its dysfunctional glory. He needs to know how long a case might take, and whether it will likely be referred to court. He also needs to know about the limits of what we lawyers know. The fact is, the system is a mess. Even people working within the system often cannot predict how long a case will take, and lawyers like me certainly don’t know. We have to convey this uncertainty to the client, so he can understand the range of possible events. With the most accurate (albeit limited) information available, the client can make the best possible decisions for himself and his family.
In short, it is very important that the client understand his situation as clearly as possible, so he can prepare his case, make informed decisions, and have some sense of his prospects for success. But once the client understands the case and decides to go forward, he needs support and hope. He needs to feel that success is possible, and that he won’t be stuck forever in limbo. This is where the cheerleading comes in.
The process of seeking asylum is long (despite—or maybe because of—LIFO). It’s also grueling. Many clients want to forget about the bad things that happened to them back home. But for those mired in asylum-land, they cannot put traumatic events behind them. Also, many asylum seekers are separated from their families, which is particularly difficult and stressful for those with young children. There’s also the overall uncertainty of not knowing whether you can stay in the U.S. or you will have to leave. Should you buy a house? Build a life? What if your case is denied and you lose it all? Any human being living through such uncertainty will feel stress, but it’s even worse for asylum seekers, many of whom have suffered trauma, and whose family members may still be in danger. People in this situation need hope.
There is a school of thought—which was already outdated when I was in law school—that the client’s emotional needs are not the attorney’s problem. If the client needs a shoulder to cry on, he should find a friend. Or a therapist. It doesn’t help that we lawyers don’t receive much training in counseling, and that we’re usually super busy and don’t have time to sit and listen to the client’s troubles. There’s also the issue of attorney burn-out. Getting too emotionally involved in a case can lead to more stress and less objectivity, which is not good for the lawyer, or, ultimately, for the client. Despite all this, lawyers can offer clients hope and positivity in order to help them get through the difficult process of asylum.
How to do this? One way is to focus on aspects of the case that are within the client’s control: Obtaining evidence and witnesses, preparing the affidavit, applying for the work permit, trying to expedite or short-list the case. Much of the asylum process cannot be influenced by the client (or the lawyer), and so taking steps that are within the client’s power at least gives her a sense of agency.
We can also encourage clients to live their lives as normally as possible: Get a job, go to school, get married, have children. To the extent possible, it is better to build a life, instead of allowing the uncertainty of an asylum case to rule your day-to-day existence.
Finally, we can try to emphasize the positive aspects of the case. Once the client is going forward with the case and understands the challenges, there is no point in focusing on the negative. If it’s very unlikely that your client can overcome the one-year bar, for example, do everything possible to help the client demonstrate an exception to the bar, but once that is done, offer the client some encouragement: Some Immigration Judges or Asylum Officers will interpret the bar more liberally, maybe the client will get lucky, etc.
These are difficult times for asylum seekers in the U.S. As attorneys, we have to continually push ourselves to be more compassionate and more patient. I know personally how difficult that can be, but if we want to best serve our clients and stand up to the forces against them, that is what we must do.]]>
If you go to the White House’s official website, you will see this article: “What You Need To Know About The Violent Animals Of MS-13.” The article claims that the “violent animals of MS-13 have committed heinous, violent attacks in communities across America.” Indeed, the two-page article uses the term “animal” in reference to MS-13 gang members a total of 10 times. What to make of this?
On the one hand, there is no doubt that MS-13 is a violent, criminal gang, that causes great misery in many communities, especially in Central America, but also in the U.S. I’ve met and represented many individuals who were victims of this gang. My clients have been attacked by machetes, shot, raped, threatened, and had family members murdered. For victims of MS-13, no language can adequately express their disgust and anger towards the gang.
But here, we are not talking about victims. We are also not talking about over-heated pundits on cable news. We are talking about the United States government. And when the United States government, and our President, refers to people–even criminals–as “animals” that is not simply hyperbole. It is a dangerous step towards fascism and genocide. And I do not mean this in any metaphorical or rhetorical way. Dehumanizing people–even bad people–has historically been a first step towards mass murder.
President Trump’s characterization of MS-13 gang members as “animals” reminds me of the Rwandan government’s rhetoric prior to the 1994 genocide. Tutsis were referred to as “cockroaches.” At the time, Rwanda was involved in a civil war, which pitted the Hutu-majority government against the Tutsi-majority rebels. The Rwandan government had reasons to speak ill of Tutsi rebels, and certainly those rebels were no angels. However, the demonization and dehumanization of the enemy went well beyond the rebel soldiers–it extended to all Tutsis.
In the same vein, perhaps the strong language against MS-13 can be justified. After all, many gang members have committed vicious crimes. But just as rhetoric against Tutsi rebels ultimately harmed innocent Tutsi civilians, the impact of the President’s words will stretch well beyond members of the MS-13 gang. Here’s more from the White House website—
Recent investigations have revealed MS-13 gang leaders based in El Salvador have been sending representatives into the United States illegally to connect the leaders with local gang members. These foreign-based gang leaders direct local members to become even more violent in an effort to control more territory
So does this mean that all people from El Salvador are suspect? Are they all “animals”? And when we are selecting people for dehumanization, how do we know where to stop? How do we know who is actually a member of the gang? What about people forced into the gang who are trying to escape, or people who simply look like gang members (whatever that means), or former gang members? Where is the due process in the dehumanization?
And if you think that mere words are not dangerous, or they can be dismissed as “Trump being Trump,” let’s remember how the Nazis engineered the mass killing of millions of Jews and other “undesirables” during World War II. From the U.S. Holocaust Memorial Museum—
Exploiting pre-existing images and stereotypes, Nazi propagandists portrayed Jews as an “alien race” that fed off the host nation, poisoned its culture, seized its economy, and enslaved its workers and farmers. This hateful depiction, although neither new nor unique to the Nazi Party, became a state-supported image
The Nazis portrayed the Jews as a threat to the Fatherland. Jews were not people; they were aliens. There was even “evidence” for the threat: Some Jews were wealthy; others were Marxist. These vile stereotypes existed long before the Nazis, but when they were adopted by the German government, they led to genocide.
In our own time, many commentators and activists have been dehumanizing non-citizens. These modern-day blood libels have always been disgusting and disgraceful. But when the President and the U.S. government get into the act, it raises the danger to a whole new level. And we are seeing that play out now, most recently in the government’s decision to rip apart parents and children who arrive at the border seeking asylum (in many case from–ironically–MS-13). Could we tear families apart and separate children from their parents if we viewed these people as human beings? This is dehumanization in action, and the harm it will cause is very real.
Let’s not mince words about what is happening here. The White House, the President of the United States, and the U.S. government are referring to human beings as “animals.” And when governments negate the humanity of people–even people deemed undesirable–it puts us on a path where the only destination is death. All of us have a responsibility to bring back humanity and decency to our country. Let us resolve to do what we can before it is too late.]]>
With all the bad news related to refugees and asylum seekers, I thought it might be nice to discuss something positive: What happens when an asylum case is granted?
The fact is, despite the best efforts of the Trump Administration, people are still winning their cases. They are winning affirmatively at the Asylum Offices, and defensively in the Immigration Courts. There are some differences between an affirmative and a defensive grant, and we’ll talk about those first.
If an applicant wins at the Asylum Office, she receives a letter indicting that asylum was granted. The date on the letter and the date of the asylum grant are usually not the same. To find the date that asylum was granted, look in the body of the letter on the first page. It will indicate that “asylum was granted on” a certain date. This is the date that matters for purposes of applying for a green card and obtaining certain government benefits.
If asylum is granted in Court, the Immigration Judge will issue an order stating that asylum is granted. If the DHS attorney appeals, the case is not over, and will have to be adjudicated by the Board of Immigration Appeals. But if DHS does not appeal (or if the BIA has already indicated that asylum must be granted), then the case is over and the applicant has asylum. There is one more step that the applicant must take in order to complete the process. The person must bring his approval order and photo ID to USCIS, which will issue an I-94 indicating that the person has asylum, and will also create a new Employment Authorization Document (“EAD”). You can learn about that process here (check the link called post-order instructions).
As soon as asylum is granted, you are eligible to work in the United States, even if you do not have an EAD (see Working in the United States). You can also get an unrestricted Social Security number by contacting the Social Security office.
A person who wins asylum can file an I-730 petition for her spouse and children. To qualify for an I-730, the marriage must have existed prior to the date that asylum was granted. For a child to benefit from an I-730, the child must have been under 21 and unmarried at the time the asylum application was filed. If the child turned 21 before the asylum case was granted, he is still eligible to benefit from the I-730. However, if the child married after the case was filed, he is not eligible to bring his own spouse and children to the U.S. through the I-730 process.
One year after asylum is granted, the alien may file for her lawful permanent residency (“LPR”) (her green card) using form I-485. We used to advise people that they could file for the green card 30 days prior to their one-year asylum anniversary, and this used to work. But then we filed a green card application early, and USCIS rejected it. Since then, we have advised our clients to wait one full year before filing for their residency. Principal asylum applicants do not generally receive a green card interview, but dependents usually do. When you receive the LPR card, it will be back-dated by one year (so if you get the card on May 21, 2018, it will indicate that you have been an LPR since May 21, 2017). You can apply for U.S. citizenship based on the earlier date listed on the card.
A person who wins asylum can obtain a Refugee Travel Document using form I-131. This document is valid for one year and is used in lieu of a passport, but there are some limitations. For example, returning to the country of feared persecution can result in termination of asylum status or lawful permanent residency (I wrote about this here). Also, not every country will accept the RTD as a travel document, so you have to check with the country’s embassy in advance.
People granted asylum may also be eligible for certain government benefits, including referrals for short-term cash and medical assistance, job development, trauma counseling, and English as a Foreign Language services. The Office of Refugee Resettlement has a state-by-state collection of agencies that can help with these and other services (once you identify agencies near you, you have to contact them directly). For those granted asylum affirmatively, the Asylum Office sometimes holds meetings to explain the benefits available to asylum seekers. You would have to ask your local Asylum Office about that. Be aware that after the case is granted, you have a very limited time to access most services, and so the sooner you reach out to provider organizations, the better.
Asylees are eligible to attend university (asylum applicants who have an EAD are also eligible to attend most universities). In many cases, universities offer in-state tuition to people with asylum. There may also be scholarships available. You would have to reach out directly to the university to learn more about tuition discounts and scholarship money.
Asylees also have certain legal obligations. If you are a male asylee (or a dependent) between the ages of 18 and 26, you must register for Selective Service. LPRs and citizens are also required to register. Also, like everyone else, asylees have to pay taxes and follow the law.
Finally, asylees and LPRs must inform USCIS whenever they move to a new address. You are required to do this within 10 days of the move. You can notify USCIS of your new address by mailing them form AR-11 or filing it electronically. Either way, keep evidence that you filed the change of address form.
Especially these days, I view every asylum win not only as a victory for the individual, but also as a victory for our country. Whether our leadership understands it or not, our nation is defined in large part by how we treat those coming to us for refuge. So if you have been granted asylum in the U.S., thank you for still believing in the American Dream–it helps the rest of us keep believing as well. And of course, Welcome to the USA!]]>
Before founding Stilwell & Slatton, Victoria Slatton worked as an Asylum Officer at the Department of Homeland Security. As a former employee of USCIS, she has an in-depth understanding of the United States immigration system and is a passionate advocate for her clients in private practice. Her full bio can be found here.
Contact Victoria Slatton at firstname.lastname@example.org. To schedule a consultation with an immigration attorney at Stilwell & Slatton, visit our website.
It’s been a year since I left my former position as an asylum officer and switched to private practice. As a former officer, sometimes it’s hard for me to balance my inherent urge to zealously advocate for my client during an asylum interview with my knowledge of how my actions will be perceived by an asylum officer. To address these concerns, I’ve compiled a very basic list of information I think will be helpful for attorneys during an asylum interview.
Every officer has her own way of handling I-589 updates, but I personally preferred it when attorneys had changes to the I-589 already written out and ready for me to go over. You don’t have to redo the entire document. Instead, simply type up the changes in an organized Word document and respectfully ask whether the officer would like a written update to help subsidize their I-589 review. Some might say no, but others will be very grateful.
This was helpful to me for two reasons. First, it showed me that the applicant wanted to be upfront about the mistakes in his claim and had every intention of being forthcoming. Second, it saved me time, in that I did not have to ask repeatedly how to spell names of family members, addresses, or seek clarification from applicants over specific dates that might be confusing. Especially if your client has an interpreter, written updates could easily save an officer a precious 20 or 30 minutes in an interview. I was always grateful when attorneys took every step to respect my time.
It is very frustrating to sit back and watch your client struggle to answer a question he doesn’t understand, especially when you know he has a perfectly reasonable explanation and simply cannot communicate his response due to nerves or a language barrier. However, interjecting yourself into your client’s testimony to clear up a discrepancy is generally not going to do your client any favors.
Officers almost never factor in attorney interjections when making a decision, and sometimes it can prevent your client from saying what the officer needs to get on record. When I handed my supervisor my interview notes, I wanted it to be clear that the applicant was forthcoming in his responses and understood my questions, not the attorney. Unless a conversation is truly going off the rails and you feel it is necessary to recenter the discussion for the sake of your client, I would highly suggest saving these remarks for your closing argument.
One of the few times you should interject in an interview is if the officer asked for evidence that has already been submitted. Officers don’t always have time to review the file in depth before an interview, and might not truly understand the nature of everything that has been submitted. Therefore, if your client is asked a question about why a certain piece of evidence wasn’t brought forth, it is very helpful and appropriate to respectfully direct the officer to the exhibit in question.
Generally speaking, for an asylum officer, the closing statement will probably be the least important piece of information in the record. Officers understand the nature of zealous advocacy and know that you will already have an inherent bias to protect your client. Now that I’m in private practice, I try to keep my closing argument to under three minutes and maintain a level of respect for my officer, even if the interview has been particularly frustrating.
I usually use this time to address inconsistencies in my client’s testimony and to explain how I think the client either misunderstood the question or point to pieces of evidence that might help the officer paint a clear picture of what happened. For example, I recently had a client who stumbled over his timeline and incorrectly quoted a few dates. The officer questioned these discrepancies and I kindly explained at the end of the interview that my client used a different calendar in his home country and often became confused when recalling the specifics of his timeline.
Lastly, I will make a short statement about why my client meets the definition of a refugee. I try to keep this to a thirty second monologue. Closing statements are an art, not a science, and I tend to focus on different legal aspects depending on the case. It is important to remember that not every legal aspect of the case needs to be defended at this point in the interview.]]>
The 2017 State Department Country Reports on Human Rights Practices is out, and the news is not good. The Report makes clear that the Department of State (“DOS”) has joined our government’s effort to block asylum seekers by any means necessary–including undermining their claims by lying about conditions in the home countries.
Let’s start with a bit about the Report itself. Each year, the State Department issues a human rights report for every country in the world. Information in the Report is gleaned from U.S. diplomats “in country,” and from other sources. The U.S. government uses the Reports in various ways, including to help evaluate asylum cases. So when a Report indicates that country conditions are safe, it becomes more difficult for asylum seekers to succeed with their claims.
There have always been issues with these Reports. From the point of view of advocates like me, the Reports sometimes minimize a country’s human rights problems. When that happens, we can submit other evidence–NGO reports, expert witness reports, news articles–to show that our clients face danger despite the optimistic picture painted by the DOS Report. But the fact is, whatever other evidence we submit, the DOS Report carries a lot of weight. It’s certainly not impossible to win an asylum case where the Report is not supportive, but it is more difficult. I imagine that’s doubly true for pro se asylum applicants, who might not be aware of the Report, and might not submit country condition information to overcome it.
That’s why this year’s DOS Report is so disappointing, especially with regards to certain populations. The group I am concerned with today is female asylum seekers from the Northern Triangle (El Salvador, Guatemala, and Honduras). Countries in the Northern Triangle are very dangerous for women. As a result, many women from this region have come to the United States in search of protection.
Over the past two decades, the U.S. government has grudgingly recognized that some such women meet the definition of refugee. But even so, it is still very difficult for most such women–especially if they are unrepresented–to navigate the convoluted path to asylum.
The Trump Administration is working on several fronts to make it even more difficult for women from the Northern Triangle to obtain asylum. For one thing, the Attorney General seems to be reconsidering precedential case law that has cracked open the door for female asylum seekers. He is also moving to charge some “illegal border crossers” with crimes (though it is legal to seek asylum at a port of entry). And now, the 2017 DOS Report is undercutting the factual basis for such claims by whitewashing the dangerous conditions faced by women in Central America.
Just looking at some basic statistics, it’s obvious that something is up. The below chart compares the number of words in the “Women” portions of the 2016 and 2017 DOS Reports for Northern Triangle countries. In each case, the length of the Women’s section has been dramatically reduced:
|Country||2016 Report||2017 Report||% Reduction|
As you can see, the “Women” sections of the 2017 Reports are more than 2/3 shorter than in the 2016 Reports. But numbers alone tell only part of the story. Let’s look at some of what the DOS has eliminated from the 2017 Report in the sub-section called “Rape and Domestic Violence” (and, by the way, DOS has entirely eliminated the portion of the Report devoted to “Reproductive Rights,” but that’s a story for another day). The Report for Honduras is typical, and so we’ll use that as an example.
The 2017 Report for Honduras states:
The law criminalizes all forms of rape of men or women, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. The penalties for rape range from three to nine years’ imprisonment, and the courts enforced these penalties.
Sounds pretty good, aye? The government of Honduras seems to be prosecuting rapists, including spouse-rapists, and the penalties for rape are significant. But here are a few lines from the 2016 Report that didn’t make it into the most recent version:
Violence against women and impunity for perpetrators continued to be a serious problem…. Rape was a serious and pervasive societal problem. The law criminalizes all forms of rape, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. Prosecutors treat accusations of spousal rape somewhat differently, however, and evaluate such charges on a case-by-case basis…. Violence between domestic and intimate partners continued to be widespread…. In March 2015 the UN special rapporteur on violence against women expressed concern that most women in the country remained marginalized, discriminated against, and at high risk of being subjected to human rights violations, including violence and violations of their sexual and reproductive rights….
So basically what we have is this: The 2017 Report is not a human rights report at all. Rather, it is a report on the state of the law in Honduras. Of course, when the law is not enforced and persecutors enjoy impunity (as indicated in the 2016 Report), laws on the books are not so relevant (and it’s really quite a bit worse than what I’ve indicated here, since the 2016 Report already minimized the violent environment in Honduras–for this reason, in our cases, we often rely on the more honest U.S. Travel Advisory and the OSAC Crime & Safety Report, both created by DOS for U.S. citizens traveling abroad).
How this new Report will impact asylum seekers, we don’t yet know. At a minimum, people will need to supplement their applications with evidence to overcome the rosy picture painted by the DOS Report, and for those asylum seekers who are unable to obtain such evidence, the likelihood of a successful outcome is further reduced.
I’ve said this before, and I will say it again here: What bother’s me most about the Trump Administration’s efforts to block asylum seekers is not that they are making it more difficult to obtain protection–they were elected on a restrictionist platform and they are doing what they said they would do. What bother’s me most is the blatant dishonesty of this Administration, and now of the State Department. If you want to reject female asylum seekers, reject them honestly. Don’t pretend that they are economic migrants and that you are returning them to safe places. At least have the decency to tell them–and the American people–that you are returning them to countries where they face extreme danger and death.
Frankly, there’s nothing too surprising about the new DOS Report. President Trump has made his views on refugees and on women quite clear. But what’s so sad is that the Report represents further evidence that the Administration’s lies have infected yet another esteemed government institution. Not only is this Report bad for asylum seekers, it’s bad for the State Department, which is now complicit in the Administration’s mendacity. Indeed, I can’t help but think that the fate of these asylum seekers is inextricably tied to the fate of the DOS, and the new Report doesn’t bode well for either of them.
Special thanks to Attorney Joanna Gaughan for the idea for this piece. Ms. Gaughan works for the Farrell Law Group in Raleigh, NC. Her practice focuses largely on asylum cases, and she can be reached at email@example.com.]]>
When a person applies for asylum, she generally seeks three different types of relief: Asylum, Withholding of Removal under INA § 241(b)(3), and relief under the United Nations Convention Against Torture.
Of the three, asylum is the best–if you win asylum, you can remain permanently in the United States, you can get a travel document, you can petition to bring certain immediate family members to the U.S., and you can eventually get a green card and become a U.S. citizen.
But some poor souls do not qualify for asylum. Perhaps they filed too late, or maybe they are barred due to a criminal conviction or for some other reason. Such people may still be eligible for Withholding of Removal (“WOR”) under INA § 241(b)(3) or relief under the United Nations Convention Against Torture (“CAT”). I’ve written previously about the benefits (or lack thereof) of WOR. Today I want to discuss CAT: Who qualifies for CAT? How does it differ from asylum and WOR? What are its benefits?
To qualify for CAT, you need to show that it is “more likely than not” that you will face torture at the hands of your home government or by a non-state actor with the consent or acquiescence of the home government. If you fear harm from a terrorist group, for example, you likely cannot qualify for CAT, unless the group is controlled by the government or acting with government sanction.
Of the applicants who fear torture, there are basically two categories of people who receive CAT: (1) Those who are ineligible for other relief (asylum or WOR) because there is no “nexus” between the feared harm and a protected ground, and (2) Those ineligible for other relief because of a criminal conviction.
Let’s talk about nexus first. “Nexus” is a fancy word for “connection.” There has to be a nexus between the feared persecution and a protected ground. An alien may receive asylum or WOR only if she fears persecution on account of race, religion, nationality, political opinion or particular social group. In other words, if you fear that you will be harmed in your home country because someone hates your political opinion, you can receive asylum. If you fear harm because someone wants to steal your money, you probably don’t qualify for asylum, since common crimes do not generally fall within a protected category (I’ve written a critique about the whole nexus thing here).
In my practice, we sometimes encounter the nexus issue in cases from Eritrea. That country has a form of national service that is akin to slavery. People who try to escape are punished severely. However, fleeing national service does not easily fit into a protected category, and thus many Eritreans who face persecution for this reason cannot qualify for asylum or WOR. Such people are eligible for CAT, however, since the harm is perpetrated by the government and constitutes torture.
Now let’s discuss the other group that sometimes receives CAT–people with criminal convictions. Some crimes are so serious under the Immigration and Nationality Act (“INA”) that they bar a person from asylum or WOR. For example, if you murder someone, you can pretty much forget about asylum or WOR. Drug crimes are also taken very seriously by the INA, as are domestic violence offenses. In fact, there is a whole area of law–dubbed “crimmigration”–that deals with the immigration consequences of criminal behavior. Suffice it to say that certain convictions will block you from asylum and/or WOR, and it is not always intuitive which crimes are considered the most serious under the immigration law.
If you are ineligible for asylum or WOR due to a conviction, you will not be barred from CAT. The United States has signed and ratified the CAT, which basically says that we will not return a person to a country where she faces torture. So even the worst criminals may qualify for CAT relief.
So what do you get if you are granted CAT?
There are two sub-categories of CAT: Withholding of Removal under the CAT (which is different from WOR under INA § 241(b)(3)) and Deferral of Removal under the CAT. This means that the Immigration Judge will order the alien deported, but will “withhold” or “defer” removal to the country of feared torture. Of the two types of relief, Withholding is the more stable status. It is granted to people who do not qualify for asylum or CAT due to a nexus problem. It is also available to certain criminals, but not the most serious offenders. Deferral can be granted to anyone who faces torture in the home country, regardless of the person’s criminal history. Deferral is–theoretically at least–more likely to be revoked if conditions in the home country change. In practical terms, however, there is not much difference between the two types of CAT relief.
For both types of CAT relief, the recipient receives an employment authorization document (“EAD”) that must be renewed every year. The person cannot travel outside the U.S. and return. She cannot petition for relatives to come to the United States. She can never get a green card or become a U.S. citizen (unless she is eligible for the green card some other way).
CAT beneficiaries who are detained are not necessarily released. If the U.S. government believes that the person is a danger to the community or security of the United States, she can be kept in detention forever (in practical terms, this is pretty rare, but it is certainly possible).
Also, sometimes ICE harassers CAT (and WOR) beneficiaries by ordering them to apply for residency in third countries. ICE officers know very well that third countries are not clamoring to accept people who we want to deport, so essentially, this is a pointless exercise. When my clients are in this situation, I advise them to comply with ICE’s demands, and eventually (usually), ICE will leave you alone.
CAT relief is certainly better than being deported to a country where you face torture. But for many people, it does not offer the security and stability of asylum. I view CAT as a last resort. We try to get something better for our clients, but we are glad it is available when all else fails.]]>
If the asylum seeker’s affidavit is the heart of her application, evidence might be considered the lungs: It provides the oxygen that allows the heart to function. Or maybe anatomical analogies are just weird. The point is, evidence in support of an asylum application is crucial to the application’s success. But what is evidence? And what happens if you can’t get it?
Let’s start with a bit about the law. The REAL ID Act of 2005 provides–
The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
See INA 208(b)(1)(B) (emphasis added). In other words, if you claim that something happened (you were unlawfully detained), you are required to provide evidence about it (a police document), and if you are unable to provide such evidence, you should be prepared to explain why you could not get the evidence (maybe the police in your country don’t issue receipts for illegally arresting people).
What this means is that you should try to get evidence supporting your case. Different lawyers may have different views on this, but I think you should get evidence for every claim you make in your affidavit and I-589. That includes evidence not directly related to the asylum claims, such as evidence of education, employment, awards and certificates, membership in organizations and religious institutions, travel to third countries, documents used to obtain your U.S. visa(s), birth certificates for you and your immediate family members, all passports for you and your immediate family members, marriage and divorce documents, national ID cards, military service records, arrest records, and general medical records. In other words, evidence about who you are and what you’ve been doing with your life.
Of course, you also need to get evidence related to your asylum claim. So if you were arrested, harmed or threatened, get evidence about what happened: Police and court documents, medical records and photos of injuries/scars, copies of any threats. If your case involves political activity in your country or elsewhere (including the U.S.), get party membership cards, receipts, letters from the party, and photos at political events. If it is a religious case, get evidence of your religion: Letters from church leaders and/or members, photos at religious events, certificates, membership documents, and government IDs, which sometimes list religion. If the case is based on nationality, ethnicity or race, get evidence that you belong to the group in question, such as identity documents.
For people claiming asylum based on membership in a particular social group (“PSG”), the evidence needed depends on the group. For LGBT cases, get evidence of sexual orientation, such as membership in gay rights groups and evidence of past relationships. If your PSG involves family members, get evidence of familial relationships–birth and marriage certificates, photos, and other family documents, including evidence that other members of your family were harmed or threatened. If you have a domestic violence case, get evidence of the relationship (marriage certificate, birth certificates of children, photos together, other documentation that you were in a relationship) and of the harm.
If there are newspaper or magazine articles, country reports or human rights reports–or even blog posts or Facebook posts–that support your asylum claim, include those. If you are using a newspaper or magazine, make sure to include the cover page of the newspaper, and the entire article. If you are using an on-line resource, make sure to include the website address.
You should also get letters from family members, friends, and colleagues who can attest to your problems (I’ve posted about how to write a good letter here). In many cases, it is impossible to get direct evidence of harm, and so letters from people attesting to your problems is all that you can get. While letters from family members and friends are not as valuable as more direct evidence, they are still valuable, and we always include such letters if we can get them.
Some people have scars or other evidence of physical harm (including FGM). In such cases, you should get a forensic medical report to help bolster your claim about how you received the scar (in other words, that the scar was caused by torture as opposed to a car accident or disease). Of course, the doctors who write such reports do not know for sure how you received a particular scar. But they can state that the scar is consistent with your explanation of how it was received. If you cannot afford a forensic exam (or find a doctor to do the exam pro bono), at least take photos of the scars and include them with your evidence. Normally, we have our clients take a close-up of the scar and also a photo from further away, so we can see the person’s face (so we know the scar is on that particular person’s body).
We also sometimes submit other types of expert reports. The most common are psychological reports (that indicate PTSD, for example). In my opinion, the most effective reports are the ones created in the course of treatment. The less effective reports are created after one or two meetings with the asylum seeker, and were clearly created for purposes of the asylum case. Sometimes, we also use expert reports related to country conditions, though these days, we can usually find what we need on the internet.
If any of your close family members applied for or received asylum, refugee or other humanitarian status (including SIV status) in the U.S. or abroad, try to get evidence of that status. In general, it is very helpful to show that other family members, who are often similarly situated, have been persecuted or have already received asylum. Indeed, we recently did a case in Texas where our client’s close family members all had SIV status (meaning that the U.S. government determined those family members faced a threat in the home country due to their cooperation with the U.S.). This evidence alone was enough to convince the Judge to grant asylum to our client.
You should also submit country condition information. Some lawyers submits lots of country condition information. I am not one of those lawyers. I think that redundant reports are counterproductive and distracting. It is standard procedure to submit the U.S. State Department Report on Human Rights Practices (or at least an excerpt of the relevant portions). Also, if applicable, we submit the State Department Report on International Religious Freedom. If those reports are not sufficient, we submits reports from other credible organizations, like Human Rights Watch or Amnesty International. There are also lots of issue-specific reports from groups like the Committee to Protect Journalists, Doctors Without Borders, and International Christian Concern, to name a few. If there are news articles from credible sources, we submit those too (if they are relevant and not redundant). Finally, if there are specific articles or reports from less-reliable sources that speak directly to the issues in the case, we submit those as well.
Of course, any documents not in English need to be properly translated.
Finally, it is important to review all the evidence to ensure that it is consistent with your statement and with the other evidence submitted (for example, if your statement says that you lived in a red house, your witness letters should not say that you lived in a blue house). Inconsistent evidence can lead to a determination that you are not credible, so be careful about this.
The evidence for each applicant is case specific. If you have an attorney, one of the attorney’s jobs is to evaluate your case and determine what evidence is helpful. If you do not have an attorney, you should still do your best to obtain as much evidence as possible. This will help increase your chances for a successful outcome.]]>
My law partner and I are adjunct professors at GW Law School, where we teach Asylum and Refugee Law (yes, we are basically one-trick ponies). This week, we learned that a scheduled debate called “Immigration 2018: Words Matter” was effectively canceled after one of the panelists was dis-invited due to his affiliation with the Center for Immigration Studies (“CIS”), an organization that some consider a hate group.
The event was billed as a “debate on the words used in the immigration debate.” Panelists were to discuss “words and phrases like maras, chain migration, criminal alien, and others.” The controversial panelist was Andrew Arthur, a Resident Fellow at CIS, and a former Immigration Judge (and a GW alum). However, Judge Arthur’s association with CIS proved controversial and ultimately led to the dis-invitation.
I can’t really discuss the situation at GW, as I don’t know all the details. Instead, I want to talk more generally about why it is so important for immigrant advocates to engage with groups like CIS.
Let’s start with the organization itself. CIS bills itself as “low-immigration, pro-immigrant.” It wants to restrict the number of foreigners we allow into the United States. In contrast, the Southern Poverty Law Center has labeled CIS an anti-immigrant hate group due to its founder’s alleged ties to white supremacists and because it circulates writings by supposed white nationalists and anti-Semites.
As you might guess, I’m not a huge fan of CIS either, and I have found some of their writers to be intellectually dishonest and needlessly divisive (though at least one of their writers thinks I’m a babe, which is quite flattering). However, my overall observation of the organization is that it is making important contributions to the immigration debate, and that its policy positions are generally within the mainstream of our society (unfortunately). For these reasons, I believe CIS’s viewpoints deserve serious attention from those of us who care about immigration policy. Also, I’m skeptical of the SPLC’s designation of CIS as a hate group. While I support the SPLC and believe it does vital work, I think designating CIS as a hate group is a stretch.
Further, even if you have a lower tolerance for hate than me, and you believe CIS is a hate group, that does not seem a good enough reason to exclude its writers from the immigration debate. CIS is in-like-Flynn with the current Administration, and so its views really can’t be ignored. Also, there are many Americans—including many in the main stream media–who do not view CIS as a hate group, and who pay attention to its opinions. Thus, we need to listen to the organization’s views in order to better understand people who seek to restrict immigration.
I’m not arguing that we need to engage with all individuals or groups that seem hateful. Some people are simply beyond the pale (David Duke, Richard Spencer) or exist merely to provoke reactions rather than advance any real policy agenda (Ann Coulter, Milo Yiannopoulos). Such people have little to contribute to any real discussion on immigration (or anything else), and exist mostly just to promote themselves. Giving them a platform is not productive. But that’s not CIS, and when we fail to engage with legitimate and/or influential organizations, the quality of our national debate is diminished.
There are other reasons to engage with CIS as well. For one, when we fail to engage, we effectively abandon the field to the opposition. While it may seem a principled stand to refuse to debate with a “hate group,” that’s not how the majority of Americans–who only pay periodic attention to immigration issues–will interpret the situation.
Indeed, we need to be present when groups like CIS distort the facts, which they sometimes do, and we also need to articulate alternatives to their restrictionist policy proposals. We cannot correct the record or advocate for our own vision unless we are part of the conversation.
There’s also the matter of scoring political points. While I dislike the sophistry of cheap “point scoring” in our political debates, this is still part of the equation. Dis-inviting a group like CIS only plays into the organization’s hands. What will they and their allies say about a dis-invitation? Frankly, it doesn’t look good, and it tends to bolster right-wing tropes about “snowflakes” and “PC campus culture.”
Finally, there’s the issue of safety. Some people (immigrants, for example) might feel targeted by CIS, and perhaps this is a reason to avoid engagement with the organization. In fact, CIS does target immigrants in its policy proposals (the “pro-immigrant” part of its mission statement notwithstanding), and so there is some justification for this concern. But in my opinion, individuals who feel targeted by CIS need to understand the organization’s policy positions so that they can help refute those positions. Such individuals also need to explain to CIS how its work hurts real life people. Another aspect of this is that many of CIS’s proposals would harm the weakest members of our society, and so we need to engage with the organization in order to stand up when defenseless people are bullied.
In the end, I don’t think we have anything to fear from engaging with CIS. We “pro-immigrant” advocates largely have logic, humanity, and American values on our side. The hard work lies in engaging with those who disagree with us, and hopefully moving our nation in a better direction.]]>
Let’s say it’s your goal to deport as many people as you can get your hands on. You believe that most asylum seekers are fraudsters and you hope to make America great again by cutting programs like TPS and DACA in order to remove as many foreigners as possible. In other words, let’s say you are a member of the Trump Administration. In that case, will case completion quotas in Immigration Court help you achieve your goal?
Superficially, it seems that they might. If Immigration Judges (“IJs”) are required to complete more cases, it makes sense that more people will be deported. Presumably with that goal in mind, the Executive Office for Immigration Review (“EOIR”)–the office that oversees the nation’s Immigration Courts–has recently created performance metrics to evaluate IJs based, in part, on the number of cases completed.
In order to achieve a “satisfactory” level of performance, IJs must now complete at least 700 cases per year, with less than a 15% remand rate (the “remand rate” is the percentage of decisions overturned by a higher court). IJs who complete between 560 and 700 cases “need improvement,” and IJs who complete less than 560 cases per year are deemed “unsatisfactory.”
For what it’s worth (a lot, in my opinion), the National Association of Immigration Judges (the IJs’ union) opposes the new plan because they fear quotas will infringe on the IJs’ independence. For its part, EOIR contends that using metrics to evaluate performance is “neither novel nor unique” and that it will “encourage efficient and effective case management while preserving immigration judge discretion and due process.”
I recently had the opportunity to speak to an IJ and a few court personnel about the new quotas, and they seemed nonplussed. In Baltimore, for example, I’m told that IJs with “regular” (as opposed to juvenile) dockets already complete well over 700 cases per year. The one IJ I spoke to said he completed 1,100 cases last year. Those number are well above average, according to the statistics I could find.
Five months into FY 2018, the nation’s IJs completed a total of 83,643 cases. Divide that by 330 judges, and you get an average completion rate for the U.S. of about 51 cases per month, or about 608 cases per year. Based on the statistics for Baltimore and my calculations (which are always suspect), the average IJ in that court will complete 855 cases this year. So why are Baltimore IJs so much more efficient than the national average?
As usual, I do not know. But looking at the case completion rates for other courts perhaps gives us a clue. In Miami-Krome, a detention center, the completion rate is about 739 cases per year per IJ. I would have expected a higher completion rate in a detention facility, as detained cases tend to move faster than non-detained (indeed, if you see a detained case file at EOIR, it will be labeled with a bold sign indicating “Rush–Detained at Government Expense”). Other detention facilities have even lower case completion rates: Eloy, AZ completes 658 cases per IJ per year, Harlingen, TX completes 516, and Elizabeth, NJ completes 457.
I suspect what’s going on with these variable rates has more to do with cases being venued to other courts than with IJ efficiency. In other words, many aliens in detention facilities are there because they were detained while trying to enter the U.S. Some percentage of these people are released, and then move to another part of the United States, where they pursue their cases. Thus, IJs near the border and at certain detention facilities (near airports or the border) tend to complete fewer cases because their cases are transferred to other courts. In my Baltimore example, there is no major detention facility nearby, and most people do not transfer their cases elsewhere. Hence, IJs in Baltimore tend to complete the cases that come before them.
The completion rate at other courts is more of a mystery. New York completes 540 cases per IJ per year, for example. LA completes only 477 cases per year (LA is near the border, so maybe some aliens are moving their cases to other jurisdictions).
In short, without better data, it is difficult to know what is going on. One thing does seem clear though: Grant rates vary significantly by court. Thus, for some IJs, the new quotas will be a non-issue. They already complete more than enough cases to earn the distinguished title of “satisfactory.” For other IJs, completing 700 cases, or even 560 cases, might be impossible. If so, the new quotas may force those judges to circumvent due process in order to fulfill EOIR’s mandate.
The new quotas raises other questions as well. The biggest one for me involves the anticipated influx of TPS and DACA recipients whose status has been terminated. It’s widely believed (including by yours truly) that many of these people will file for asylum rather than depart the United States. In an effort (probably futile) to dissuade such people from seeking asylum, USCIS has already re-ordered how cases will be processed, so that newly-filed cases will be interviewed first. If those cases are denied, they will be sent to court, where–according to one official I spoke to–they are supposed to be heard on an expedited basis. But how can that happen unless the court dockets are re-ordered? This “aimless docket reshuffling” (a termed coined by the inimitable Judge Schmidt) will pretty clearly interfere with the IJs’ ability to meet EOIR’s quotas.
So in the end, it seems that the new quotas will have no affect on some IJs, and dramatic affects on others. Whether overall completion rates will be improved, I have my doubts, especially if dockets are reshuffled to accommodate an influx of TPS and DACA recipients. I also have doubts about whether IJs who are forced to drastically increase their completion rates will be able to continue making decisions in accordance with due process of law. Sadly, the Trump Administration seems far more concerned about quantity than quality, and I fear that asylum applicants, immigrants, and our nation’s IJs will all suffer because of it.