Submission of Asylum Applications After Termination of Removal Proceedings

 

On 10/13/2023, U.S. Citizenship and Immigration Services (USCIS) issued new instructions regarding submission of asylum applications by individuals after dismissal or termination of removal proceedings by Immigration Court/EOIR: 

Effective Oct. 16, 2023, if EOIR dismissed or terminated your removal proceedings and you choose to pursue a claim for asylum, you must submit a current version of Form I-589, Application for Asylum and for Withholding of Removal, to the USCIS lockbox that has jurisdiction over your place of residence. If you had a pending asylum application when EOIR dismissed or terminated your removal proceedings, you should include in your submission any additional or updated information regarding your claim for asylum. We also recommend that you submit proof demonstrating that: EOIR dismissed or terminated your removal proceedings, such as a copy of the EOIR Order of Dismissal or Termination; and You had a Form I-589 pending with EOIR when your removal proceedings were dismissed or terminated. If the evidence establishes that you filed Form I-589 before the date when EOIR dismissed or terminated your removal proceedings, we will issue a receipt notice with your original Form I-589 filing date. This is the date we will use for purposes of the one-year filing deadline, employment authorization eligibility based on a pending asylum application, asylum interview scheduling priority, and age determinations for child dependent applicants. If you did not file Form I-589 before the date when EOIR dismissed or terminated your removal proceedings, we will issue a receipt notice with your current Form I-589 filing date. If you originally filed an asylum application with USCIS (known as an affirmative asylum application), and we referred, forwarded, or transferred your asylum application to immigration court where it remained pending until the removal proceedings were dismissed or terminated, we intend to issue a new discretionary Notice to Appear to send your application back to EOIR if you file a new asylum application. (Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)

Affirmative Asylum Applicants Must Bring Interpreters to Inteview

Starting 9/13/2023, affirmative asylum applicants must bring their own interpreters to asylum interviews, if they are not fluent in English or prefer to conduct the interview in a language other than English.

Since 2020 and throughout the COVID-19 pandemic, USCIS has required asylum applicants to use contract telephonic interpreters arranged by USCIS for health and safety reasons. This policy has ended today, and an asylum applicant must bring their own interpreters if they need to use one.

USCIS warns that failure to bring one's interpreter may result in denial of the asylum application, as the USCIS would not be able to proceed with the interview.

Asylum applicants are allowed to bring an adult friend or family member to act as the interpreter. However, the following individuals cannot server as an interpreter:

• The attorney or accredited representative of the case;
• A witness testifying on your behalf of the applicant;
• A representative or employee of the government of your country of nationality (or, if you are stateless, your country of last habitual residence); or
• An individual with a pending asylum application who has not yet been interviewed.

Further, asylum applicants must make sure that interpreters that they use are competent.  Oftentimes, friends and family members may know English but are not qualified to act as interpreters.  A competent interpreter must be fluent in both English and the language to be translated. USCIS may consider incompetent interpretation as failure to appear for the interview, which may result in the denial of the asylum application.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

Credible Testimoney and Evidence is key to Asylum Claims

 

Tens of thousands of individuals come to the U.S. every year to apply for protection based on persecution in their home countries.  On average, only about 30 to 40% of applications are granted, depending on the existing government policies.  One of the most common reasons that applications for political asylum are denied is lack of credibility. 

Credibility is important for a few reasons.  First, most asylum applicants are not able to provide substantial documentary evidence to support their claim.  When a person is genuinely escaping from persecution, it is unlikely that this person would have an opportunity to collect an abundance of documents.  Further, persecutors are also unlikely to cooperate with the applicant by releasing inculpatory evidence. Finally, if an asylum applicant's account of his experience is not credible, there is no sound basis to assess the claim at all.  If an applicant's account of one event is not believable, one may conclude that his or her whole story is not credible.  

However, in some cases, credibility is difficult to ascertain due to cultural differences, discrepancies in translation, and also improper or insufficient case preparation.

For example, in a recent Ninth Circuit Court case (Dong v. Garland, 10/19/22), the Court affirmed the findings of the Immigration Judge (IJ) regarding credibility.  The applicant filed a claim based on religious persecution.  In his written statement, he mentioned that he was interrogated once during a detention by the government.  However, he testified in court that he was interrogated twice.  The IJ also found his demeanor suspicious. He waited ten seconds before answering the question about this omission, and he also changed his explanation.  Another inconsistency regards his injuries.  While his written statement mentions that he suffered “pain” from beating by police, in court he testified that he sustained injuries on his chest.  When asked why he didn't seek medical treatment, he said that the police did not allow him to.  The IJ pressed further and asked him whether the police told him not to tell others about the beating or not to seek medical treatment. He testified that he was not allowed to tell others about the beating. The IJ concluded that his testimony regarding medical treatment was less than candid.  Finally, Dong presented a copy of his household registration and testified that his mother presented the original to the local notary after he left.  Because the household registration listed his name rather than his mother's name, the IJ again made a negative credibility finding.

Although there is no way for us to know whether Dong was telling the truth, we can, however, understand how these inconsistencies can be explained. For example, the preparer of his application might have failed to confirm all the facts with Dong properly, and neglected to put down the first interrogation in the written statement.  When he said he suffered pain in the statement, it does not mean that he did not sustain injuries.  Each person's tolerance of pain is different.  Further, when he said that the police did not allow him to disclose the beating, rather than to seek medical treatment, there is no direct contradiction.  If Dong were to seek medical treatment, the doctors would certainly ask him how he sustained his injuries, and he would not be able to provide a plausible explanation without disclosing the beating.  Regarding the house registration, it is commonly known that one may ask his/her family members to make such requests about civil documents on his or her behalf in many countries.  

Credibility is key to a successful asylum claim in the U.S. legal system.  Many asylum applicants are frivolous, and not based on truth and real events.  However, even for applicants who have a true story to tell, this case illustrates the importance of presenting a credible claim.  To present a credible claim, one must choose a preparer or attorney carefully, review the events meticulously to ensure accuracy, and to be able to testify in a direct, consistent, and believable manner. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS to Provide Asylee I-94 and Green Cards to Cases Approved by IJs and BIA

On May 4, 2023, USCIS announced that the agency is providing status documents for people who were granted asylee or permanent resident status by the Immigration Court and Board of Immigration Appeals (BIA).

Foreign nationals usually apply for legal status from the USCIS.  However, some individuals in removal cases have their cases heard and decided by the Immigration Court or the BIA.  When status is granted by an Immigration Judge or the BIA, an applicant sometimes had difficulties obtaining proof of their legal status.  The recent announcement means that USCIS is actively and affirmatively providing status documents to applicants after their cases are approved by the Immigration Court and/or the BIA.  

These documents include (1) Form I-94, Arrival/Departure Record, with asylee stamps, which are issued to applicants who have been granted political asylum; and (2) Permanet Resident Cards (green cards) for individuals who have been granted adjustment of status. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Proposal to Restrict Asylum Eligibility

The Biden Administration recently proposed to limit foreigners' ability to apply for asylum in the United States.  In a Notice of Proposed Rule Making entitled “Circumvention of Lawful Pathways”, the Department of Homeland Security (DHS) proposed to institute certain presumptions of ineligibility for political asylum on foreigners who across the southwest U.S.-Mexico land border without authorization.  The presumption can be overcome if, 

1) the foreign national was granted parole prior to arrival;

2) the foreign national presented himself/herself at a port of entry through a pre-scheduled time and place; or

3)  Sought asylum or other protection in a country they traveled through and received a final denial.

This proposal restriction will be effective for 2 years after the rule goes into effect. 

This legal presumption can be overcome under limited circumstances only, including if the applicant or his/her family member "faced an extreme and imminent threat to their life or safety, such as an imminent threat of rape, kidnapping, torture or murder; or were a victim of a severe form of trafficking."  The presumption also does not apply to unaccompanied children.

In short, unauthorized asylum seekers arriving at the Mexico border must prove that they have unsuccessfully applied for asylum in a third country before they are eligible to apply for asylum in the U.S.  This proposal has already generated lots of debates and controversies. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Asylees / refugees may apply for Green Card sooner under new policy

 

USCIS today clarifies some technical requirements for asylees and refugees to apply for permanent resident status (Green Card) through Adjustment of Status.  The most important items include:

1) Starting 2/2/2023, asylees and refugees only need one year of physical presence in the U.S. at the time their I-485 adjustment application is adjudicated by USCIS.  One year of physical presence is not required when they submit the I-485 application.

2) Asylees and refugees who are otherwise subject to the INA Section 212(e) 2-year residence requirements under the J visa program are eligible to apply for adjustment of status under INA Section 209.  A waiver is not required. 

As a result of these changes, asylees and refugees should be able to apply for U.S. permanent residency and citizenship sooner and easier than before. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS Offices Closure Due to the Snow Storm

USCIS announced that all of their offices in New Jersey, New York City and Philadelphia will be closed on Monday, 2/1/2021, including:

• Field offices located in Mount Laurel and in Newark
• Application Support Centers (ASCs) located in Elizabeth and in Hackensack
• Newark Asylum Offices located in Newark, NJ and in Manhattan, NY
• New York City District Office
• The Holtsville District Office 
• Application Support Centers in Manhattan, The Bronx, Brooklyn, Queens, and Long Island 

All scheduled appointments for interviews, naturalization tests, biometrics, asylum, etc., will be rescheduled within 30 to 60 days. 

Asylee Adjustment Interviews Much Less Likely to be Waived

If you have been granted political asylum or refugee status by the US government, you may generally apply for a green card through the adjustment of status process after being in the US for one year.  You must continue to meet the definition of a refugee and has not firmly resettled in another country.  

To apply for adjustment of status, you must also not subject to other grounds of inadmissibility (e.g., criminal background).  For many years, interviews have not been required when asylees or refugees apply for adjustment of status. However, this will change soon. 

Following a December 15, 2020 change in USCIS policy, asylees and refugees applying for adjustment of status are much more likely to have to attend an interview. Previously, asylees that had already been interviewed by an officer were extremely likely to have their adjustment interview waived. This change removes them from the list of waivable adjustment interviews, leaving them open to being selected based on officer discretion.

Officer discretion on selecting adjustment cases for interviews is guided by several general criteria. Overall, issues with the applicant's identity and concerns of national security, fraud, and other grounds of inadmissibility that arise during background checks necessitate an interview. The officer can also request an interview if there is insufficient information to establish eligibility through just documentation. 

Other reasons include residence or citizenship in a country deemed a State Sponsor of Terrorism or if an applicant benefitted from an approved I-730 petition but was not interviewed. The decision to call for an interview is ultimately down to the officer.

USCIS explains that under the previous policy less than 5% of asylee adjustment applicants were interviewed. This figure will rise significantly following this change, something USCIS acknowledges as part of an effort to increase screening and vetting. 

Interviews are a standard part of many application procedures. Anyone, asylee applicant or not, feeling unsure about an upcoming adjustment interview can seek the guidance of an immigration attorney to help prepare for it.

Interview Requirement to be Added for Asylee Petitioners of I-730

Obtaining status as an asylee or refugee means that one may legally stay in America with protection. What about the person's family members abroad, who may still be at harm's way?  

After attaining asylee status or admission as a refugee, individuals may file Form I-730 Refugee/Asylee Relative Petition within 2 years to have their spouse or unmarried children under 21 join them in America.

The process involves the usual -- submitting evidence, beneficiary biometrics and interview, etc. Petitioners themselves only need to interview when the beneficiary is in the United States and more information is needed to determine eligibility. 

However, according to a recent memo published by USCIS, the petitioner interview for such cases will be a requirement by the first quarter of FY2021. Furthermore, this change will be Phase 1 of a plan to implement the petitioner interview under USCIS and DOS jurisdiction globally (jurisdiction being where an office that handles those cases exist).

In Phase 2, estimated to begin by the time new Form I-730 instructions are published, will add the requirement to cases where the beneficiary and/or petitioner is in a USCIS jurisdiction abroad. This is only if the petitioner and beneficiary are located within USCIS jurisdiction.

Phase 3, implementation date to be announced, will include cases where the beneficiary and/or petitioner is in a DOS (Department of State) jurisdiction abroad.

Petitioners will be expected to attend a scheduled in-person interview at a USCIS office as part of the adjudication process. They can expect multiple interviews if they filed multiple I-730s. As with all USCIS appointments, petitioners should make time to attend their interview. It is an important part of the process and missing it could result in case denial.

The above rules will apply to Form I-730 applications filed on or after a to-be-announced implementation date for each phase. There are no concrete dates for now. Asylee and admitted refugees with pending I-730 petitions should expect and be prepared for an interview as each phase of the plan moves forward in 2021.

New Rule Regarding Asylum Seekers' EAD Applications

DHS finalizes the proposed rule regarding processing asylum seekers' EAD applications today. The new rule, effective August 21, will have two main provisions:

(1) DHS no longer has to adjudicate I-765 Application for Employment Authorization Document filed by asylum seekers within 30 days; and

(2) Asylum seekers may file for their EAD extensions as early as 180 days before expiration (used to be 90 days).

This rule was proposed by DHS last year.

Seven Additional Bars to Asylum Proposed

USCIS and EOIR jointly proposed a new rule to add seven mandatory bars to asylum eligibility on December 19, 2019. (84 FR 69640, 12/19/19)  Under this rule, an asylum seeker will be barred from obtaining political asylum if he / she is convicted of:

(1) Any felony under federal or state law;

(2) Alien smuggling or harboring [8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2)] ;

(3) Illegal reentry to the U.S. after removal under 8 U.S.C. § 1326;

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) A DUI/DWI offense under federal, state, tribal, or local law; 

(6) A domestic violence offense under federal, state, tribal, or local domestic violence law (or has been found to have committed acts of domestic violence);

(7) Misdemeanor offenses under federal or state law related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

Under the new proposed rule, a vacated, expunged, or modified conviction or sentence would still be recognized for purposes of determining whether an individual is eligible for asylum, unless the applicant can establish that the change was not for immigration or rehabilitative purposes.

The proposed rule would also remove the automatic review of a discretionary denial of an alien’s asylum application. The current regulation mandates that denial of asylum must be reconsidered

if the denial is solely based on exercise of discretion, and the applicant is subsequently granted withholding of deportation or removal.

These changes would severely limit foreigners' ability to obtain asylum in the United States.  

Frivolous Asylum Claims Bars Applicant From All Immigration Benefits

The United States extends asylum status to those that truly deserve it. Unfortunately, some foreign nationals apply for asylum under false claims, prompting the addition of the "frivolous application" rule as a deterrent. 

A "frivolous" application is one that is based on fabricated key facts of the case.  If found to have submitted a frivolous application, the applicant will be barred from immigration benefits, although there has been some controversy as to how large the scope of the bar is. The Ninth Circuit Court, a federal appellate court, held that the bar is to apply to the entire Immigration and Nationality Act (INA), meaning all immigration benefits.

The petition in question involves a man who was to be deported for a 1999 filing of an asylum application under a fake name. He had already lived in the country for 14 years since then and had a green card. He filed for a waiver of deportation under section 237(a)(1)(H) of the INA, which was denied. Then, he filed a petition for review on the decision. (Manhani v. Barr, 11/25/19) 

Under Section 208(d)(6) of the INA, if an applicant has filed a frivolous asylum application and  has received notice of the consequences and their privilege of counsel, they "shall be permanently ineligible for any benefits under this chapter". When the applicant in Manhani argues that the bar applies to asylum benefits. The Court denied the petition review, saying that the words are to be interpreted as covering the whole Immigration and Nationality Act. When the asylum application was found to be frivolous, the applicant was presumed to have been barred from all immigration benefits. This included a waiver for deportation. 

This decision, once again, confirms that a frivolous asylum application bars the applicant from all immigration benefits, effectively preventing the person from entering and staying in the country legally.  Unfortunately, many foreign nationals are persuaded by certain "consultants" and "notaries" in their community to file baseless asylum applications in order to obtain a work permit.  Often times, the foreigners don't even know what is stated in their asylum applications.  At the end, when they have a valid basis to apply for residence status, their applications will be denied because of the previous frivolous asylum application.

Proposal to Eliminate Asylum EAD 30/90 Days Processing Time Frame

Asylum seekers typically are dealing with very difficult circumstances, which asylum law tries to address with certain rules. Under current law, USCIS must adjudicate an asylum seeker's I-765 application within 30 days. DHS has proposed to remove this 30-day time frame.

The I-765 application is very important for an asylum seeker. It is for an Employment Authorization Document (EAD), which would allow them to work in the United States. Asylum cases take a long time to process, especially given the current backlog of cases. Not receiving an EAD within a month would make it hard for the asylum seeker to support themselves while their case is pending.

DHS cites security and resource allocation reasons for this proposal. The growing backlog of asylum cases has made it harder to keep up with the 30 day EAD adjudication time frame. DHS explains that having a longer time frame to make a decision allows for more thorough security and fraud investigations. 

Another change included in this proposal is the removal of the 90 day submission requirement for EAD renewal applications. This change is meant to reduce confusion regarding EAD renewals and to align with regulations of other EAD categories. The 2017 AC21 rule already allows for an automatic 180-day extension of certain types of EADs if a renewal application is filed before the expiration date. DHS cites that this is enough to cover gaps in work authorization, and that the 90 day requirement is unnecessary.  This is one less burden for asylum seekers. 

The proposal was published on September 9, 2019 in the federal register. DHS will take comments and suggestions and alter the proposal as necessary.

Combined Departmental Action to Counter "Caravans"

President Trump's recent Presidential Proclamation, aimed at the large approaching "caravans" of migrants approaching the southern border, has led to combined efforts by the Department of Homeland Security (DHS), the Department of Justice (DoJ), and Department of Defense (DoD) to enforce border security.

Reportedly there are two caravans, each with at least 3,000 migrants and hundreds of additional followers, are approaching the U.S.-Mexico border.  According to the President's proclamation, the government had to spend tremendous resources to take care of these unlawfully-entered foreign nationals. Government statistics show that in Fiscal Year 2018, there were 396,579 foreigners arrested at the border due to unlawful entry.  Most recently, DHS reports that an average of approximately 2,000 people enter the U.S. daily at our Southern border.  The President proclamation identifies migrants that illegally enter between ports of entry, foregoing inspection, and declares these migrants' entry "suspended and limited" as of November 9th. The proclamation is in effect for 90 days.

Almost simultaneously, DoJ and DHS, have issued a final interim rule to align with the proclamation by automatically denying asylum to those crossing the Southern border illegally. These final interim rules forego the proposal process, becoming effective immediately. They will instead be turned to ports of entry for proper processing. The proclamation and interim rule allows migrants to apply for withholding of removal (which has stricter legal requirements than asylum) and protection under the Convention Against Torture (for those who can prove reasonable fear of torture upon returning to their country).  

The DoD has already deployed military personnel to provide a wide range of support to the DHS and CBP in anticipation of the approaching caravans. Support will be in the form of logistics, transport, medical support, and other areas. CBP and DoD officials had a clear message at their October 29 joint press conference: illegal entrants will be apprehended, asylum seekers should take Mexico's offer of protection, and economic migrants should go home and apply for a visa. 

These migrants are mostly natives of Central America, a place that has been governed by dictatorships and corrupted governments and plagued by wars, violence, poverty, gangs and political uprisings. They are determined to seek protection and a better life in the U.S.  It is a very dangerous journey to take as many of them have gone missing in the past in similar caravans and migration.  Lawsuits have been filed to stop the enforcement of the proclamation and interim rule.  Despite the deployment of military personnel, it is hoped that the matter can be resolved peacefully at the end.  

Refugee Cap Slashed to Record Low 30,000

The number of refugees to be admitted next fiscal year is now capped at 30,000. This is a substantial decrease compared to this year's cap of 45,000 and a new record low. Secretary of State Mike Pompeo made the announcement recently, citing that the country should prioritize its current backlog of asylum seekers.

Since 1975, the United States has been offering asylum through its refugee admissions program to those that qualify. Refugees are generally defined by the U.N. as those that have left their country due to persecution, war, or violence. The legal definition of a refugee is someone who is fearful of returning to their last country of residence due to persecution suffered or a "well-founded fear" of future persecution because of religion, race, nationality, political opinion, or membership in a particular social group.

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Under the U.S. laws, asylum seekers are those who meet the U.N. definition of refugees and also a hose of additional legal requirements that have been developed in the U.S. courts. Asylum seekers are refugees that request protection in the United States. They may be applying at a border of entry or within the United States. Those applying at the border, usually during expedited removal proceedings, do so defensively by claiming they have credible fear of persecution or torture. They then undergo a credible fear interview to see if they meet the definition of a refugee. Those that are in the country and are undergoing removal proceedings may also apply defensively for asylum. If these applicants prove they have credible fear, they will not be removed and instead will gain legal protection as refugees. Those legally in the United States may apply affirmatively for asylum. If denied, they will legally remain in the country until their visa expires. Denials may be appealed to an immigration judge, who will refer the case for a full hearing if he/she finds credible fear.

All asylum seekers bear the burden of proof of meeting the legal definition of refugees in order to receive legal protection and assistance. This is through showing that they had already been persecuted in the past or that they have a well-founded fear that it would happen to them. Persecution is abuse by the government or people that authorities will not or cannot control. Asylum seekers must show the mistreatment is because of religion, race, nationality, political opinion, or membership in a particular social group. They also have to have their biometrics taken and undergo a series of background checks.  If the case is approved, the applicant gains asylum and may also apply for permanent resident status at a later date. 

Next year's cap does not mean 30,000 refugees will be accepted. The actual number has been less than the allowed cap in the past years. Given the tight immigration restrictions of this administration, the number of refugees is predicted to be far less. Only 20,918 refugees have been admitted this fiscal year, which is less than half of the 45,000 cap.

Unfortunately, it will be harder for asylum-seekers to gain asylum and stay in America. Although denials can be appealed to immigration court, BIA (Board of Immigration Appeals), and a federal court, those without legal status will be removed if their asylum claim is ultimately denied. The current administration will continue tightening immigration law and perpetuating an unfriendly environment.

Sessions Rescinds Asylum-Seekers Ability to Work

America has always opened its door to people who escape persecution from other countries.  The Statute of Liberty still stands tall in the New York Harbor and, at its base, is still ingrained with Emma Lazarus's words "Give me your tired, your poor/Your huddled masses yearning to breathe free." While these words are set in stone, our immigration policy is rather fluid and changes constantly based on our current politics, economics, and "general feelings" about foreigners.  Our present policy is clearly one of restriction, as demonstrated by the newest announcement by the Attorney General that asylum seekers' ability to work will be taken away.

Many refugees came to America because of political and religious persecution, while some others foreigners may come here for economic opportunities.  Regardless of their true intentions, when foreigners arrive at our shore and seek asylum, we always give them an opportunity to state their case. We would offer protection if they meet the legal standards. Otherwise we reject their applications. While they are waiting to have their cases heard, our policy has been to allow them to stay and work here temporarily. 

Recently, many Obama-era immigration guidances have been dropped through the authority of Attorney General Jeff Sessions. One of the notable scrapped guidances was issued in 2011 which allowed asylum-seekers to work indefinitely and have a social security number. The same guidance restricted employers from requesting specific ID and immigration documents as proof of employment eligibility. Another dropped guidance, from 2009, mandated that employers not discriminate by immigration status when hiring. These changes allow employers to make hiring decisions based on applicants' immigration status and documents. 

There is a historical context behind this issue. In the past few decades, applying for asylum was basically the only way for the undocumented foreigners to obtain employment authorization. Many of them were lured, sometimes unknowingly, to submit asylum applications so that they may obtain EADs. Abuse of the asylum system has compromised its integrity and buried legitimate cases. The number of people that applied for asylum peaked in 2016 at around 180,000.

On a similar note, the backlog of cases in immigration courts has grown immensely in the past decade. As of May 2018 it has peaked to over 700,000 cases and eliminating this backlog is among Sessions' top priorities. He is aiming to do this by diminishing the employment incentive for illegitimate applicants. There is now a 180-day waiting period between applying for asylum and getting an EAD, but rescinding of the 2011 guidance will remove the benefit altogether. 

With these changes, the benefits of asylum-seekers are severely limited. Losing the ability to work and equal employment opportunities in the U.S. would certainly discourage economic refugees from coming here, but it would also make it very difficult for legitimate asylum seekers to survive while waiting for their claims to be reviewed. 

AG Sessions: Domestic Violence Not Eligible for Asylum

U.S. Attorney General Jeff Sessions issued a decision Matter of A-B- on June 11, 2018, making it more difficult if not impossible for domestic violence victims to obtain asylum protection in America.  His decision reasserts the traditional view of what constitutes a particular social group for the purposes of applying for political asylum.

Those seeking asylum in the U.S. may do so if they suffer persecution based on race, religion, nationality, being in a particular social group, or political opinion. What constitutes a "particular social group" (referring to the asylum seeker's claimed persecuted group) has been a subject of controversy. Generally speaking, an applicant arguing that she is persecuted because she belongs to a particular social group must demonstrate that the group can be objectively defined by virtue of some "immutable traits" such as one's race or sexual orientation. Further, the group must be  recognizable in society.

The biggest point of contention in domestic violence cases is the term "particular social group". By traditional interpretations, people in privately violent cases do not qualify as asylum seekers. In 2014, however, a new precedent was set. The case Matter of A-R-C-G- presented a woman who had fled her abusive husband in Guatemala and sought asylum in the U.S. The Board of Immigration Appeals (BIA) ruled that “married women in Guatemala who are unable to leave their relationship” is a valid social group. The Board defined "married" as an immutable characteristic and "married", "women", and "unable to leave the relationship" as distinct statuses in Guatemala. Social distinction in Guatemala was also recognized  through a "culture of machismo and family violence". This was a controversial decision and cases involving domestic violence cases were decided inconsistently. Some cases continued to be denied because the applicant was not deemed part of a particular social group.

Sessions overrules A-R-C-G- in his decision, rejecting the broad interpretation of "particular social group". According to the A.G.'s decision, the social group “married women in Guatemala who are unable to leave their relationship” is not valid by definition of the Immigration and Nationality Act. This group, according to him, cannot be circularly defined by the victims' situation. The group needs to be defined independently of the inflicted harm.  It needs to be an existing, recognized segment of the applicant's society. Also, the husband did not specifically target the applicant because she was a Guatemalan woman unable to leave her relationship. The applicant was denied asylum because she did not establish her membership in a particular social group. Session also believes that there was insufficient evidence to prove that the Guatemalan government was unable or unwilling to stop the domestic abusive acts, another requirement for obtaining asylum.

Sessions applied the same rationale to Matter of A-B-, where the social group claimed was “El Salvadoran women who are unable to leave their domestic relationships where they have children in common”, and remanded the case to the Immigration Court for a new decision.

While the Attorney General's decision is binding on all immigration courts, the BIA, and asylum officers, his word is far from being final on this issue. Asylum law is constantly changing and developing. This issue will likely resurface in a different context soon.

Asylum Interviews - Last In, First Out

If you filed your political asylum application with the USCIS recently, you will likely be scheduled for an interview sooner than you think.

USCIS announced today that it is changing the order the agency is processing pending affirmative applications for political asylum; it will give priority to cases that have been pending for 21 days or less.  Specifically, the Asylum Office will interview cases in the following order:

• Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS;
• Applications pending 21 days or less since filing; and
• All other pending applications, starting with newer filings and working back toward older filings.
• Additionally, the Affirmative Asylum Bulletin issued by USCIS has been discontinued.

The change of processing order is intended to address the agency's concerns that some filers may be abusing the current backlog of asylum cases to obtain employment authorization. Currently there are about 311,000 pending asylum applications with USCIS.  Filing of an asylum application entitles the applicant to apply for employment authorization to work in the U.S. after the case has been pending for a period of time. By using a “last in, first out” interview schedule, USCIS aims to discourage foreigners from filing frivolous or otherwise non-meritorious asylum claims.   

A person without a valid immigration status whose asylum claim has been denied is usually placed in removal proceedings. 

Religious Asylum Application Found Incredible

A Chinese citizen's asylum application based on religious persecution was denied by a federal appeals court recently because he was found not to be credible.  The court questioned the fact that there are striking similarities between his application and two other asylum applications in wordings, format, and substance.

The 6th Circuit Court of Appeal upheld the denied of an asylum application filed by a Mr. Wang from China in Wang vs. Lynch.  Mr. Wang's asylum application was actually granted initially by an immigration judge.  However, the decision was appealed by DHS and the BIA remanded the case to the immigration court for further inquiries.  The case was assigned to another immigration judge who then denied his asylum application due to lack of credibility.  Mr. Wang appealed the denial to the federal appeal court.

The crux of the case is Mr. Wang's credibility.  Specifically, Mr. Wang was found not to be credible on account of the fact that his statement filed in support of his political asylum application contains a lot of similarities to two other unrelated applications.  These applications narrate very similar stories. For examples, two applicants were introduced to the Christian faith by a nurse who was caring for a friend or family member in a government run hospital.   In all three accounts, the applicants were participating in church services at a church member's home at either 10 am or 10:30 am when three public security officers arrived; two applicants were ordered to stand in the kitchen.  At the police station, the stories were also similar. The applicants were interrogated regarding their "anti-government purposes" and the locations of other family churches; beaten up by the police officers; detained in small, dirty cells with about half a dozen other inmates; and were either fed very little or had their food stolen.  All three interrogations also lasted forty minutes.  In all applications, the worshippers were referred to as a "devil cult".  Upon their release they were all asked to report to the police station every week, terminated from their job, and ordered to write repenting letters.  

Further, all three statements were formatted similarly; they use the same font type, font size, typeface, margins, spacing, headings, etc.  Based on these similarities the second immigration judge and the BIA were not convinced that Mr. Wang's story was credible.  On appeal, Mr. Wang tried to explain the similarities by arguing that these asylum claims are all based on religious persecution in China, The court explained that while similar stories are expected, identical narration of their experiences suggests something else.  Mr. Wang also explained that the statements were similar because they were prepared by the same office. However, Mr. Wang's testimony was that he used a church friend as a translator and that he did not tell his story to other third parties.  The court also pointed out that the statements used the same wordings such as "devil cult" and "reactionary purpose", which suggest that they were drafted by the same person or persons.  

Because Mr. Wang failed to provide any plausible explanation for the similarities between his applications and two other applications, the court upheld the negative credibility finding of the immigration court.  Since credibility is the basis for any asylum claim, Mr. Wang's asylum application was properly denied.  Here, we cannot speculate whether or not Mr. Wang was indeed persecuted or not.  But even if he did have a valid claim, the court would not have known since he used questionable personnel to prepare his application.  This is just another example of how an immigration case is denied because an applicant failed to seek proper legal advice.  

Nuclear Family Relationship can be a Basis for Asylum

What can a mother do if she was threatened at gunpoint to have her son join the gangs? Well, she may be eligible to apply for political asylum in the United States, according to a recent decision by the U.S. Court of Appeals for the Fourth Circuit in Hernandez-Avalos v. Loretta E Lynch, Attorney General (No. 14-1331 4th Cir. 4.2015). 

One of the basis for applying for asylum in the U.S. is that an applicant is unable or unwilling to return to her country of origin because of persecution or a well-founded fear or persecution on account of her "membership in a particular social group." Immigration and Nationality Act (INA) Section 101(a)(42).  The courts have held that a family unit may constitute a social group.  The issue in Hernandez is whether the applicant mother's nuclear family relationship to her son is a central reason for the gangs targeting her for persecution.  

The case involved a public gang in El Salvador named Mara 18. Hernandez is a Salvadoran woman whose son was threatened to join the gang, after her husband's cousin was killed by one of the gang’s member.  Because Hernandez's strong opposition to his son joining Mara 18, she was threatened with death many times---the gang members even put a gun to her head once. After repeatedly asking help from the local police without any response, Hernandez was afraid of the gang’s retaliatory persecution and, in 2008, brought his son to the United States to seek protection.

The Fourth Circuit found that Hernandez had a well-founded fear of persecution and that the Salvadoran government could not control Mara 18's criminal activities or ensure her son's safety. Here, the court also examined whether Hernandez' nuclear family relationship to her son is "a central reason" for the gangs targeting her for persecution. The BIA concluded that the threats to kill Hernandez unless she allowed her son to join the gang were not made on account of Hernandez’s membership in her nuclear family. Rather, it was made because she did not give consent to her son's engaging in criminal activities. The Fourth Circuit believed that this reading by BIA of the statute is "an excessively narrow" one. Hernandez’s relationship to her son and her maternal authority to control her son were the reasons why she was targeted. In other words, Hernandez is her son’s mother is at least one central reason for her persecution.  The BIA’s conclusion was therefore unreasonable.

However, the court specifically limits the scope of the ruling to “nuclear family membership”. Not every threat that involves a family member is made on account of family ties. For example, a threat demanding Hernandez not to identify the murderers of her husband’s cousin was not made on account of Hernandez’s familial connections because that same threat could have been directed at any person who knew about the gang members’ criminal activities. By contrast, the threats that directed Hernandez to turn her son over to the gang would not have been made if there had not been a familial connection.