Waiting for Godot: The U.S. Asylum Process

"Waiting for Godot . . . is an absurdist play by Samuel Beckett, in which two characters, Vladimir and Estragon, wait endlessly and in vain for the arrival of someone named Godot."

Life imitates art in U.S. asylum law, as this article from Al Jazeera America amply demonstrates.  I do a lot of asylum work in my immigration practice, and in the past couple of years the most salient feature of this area of the law has been government induced delay.

The Al Jazeera America article correctly points out that "asylum claimants" are to be distinguished from "refugees." Asylum claimants are individuals who are either in the United States already, or arrive at the border demonstrating a "credible fear" of persecution based on a protected ground under US asylum law. Refugees, on the other hand, are individuals who have also been persecuted, but who are outside the United States and are eligible to come to the United States after a lengthy screening process.

Here I am focusing on the plight of asylum claimants. There are two kinds of asylum claims that can be made: affirmative and defensive.  Affirmative claims are ones that the alien initiates on his/her own, by making an asylum filing with USCIS. Defensive asylum claims are those asserted by the alien when he/she is a respondent in immigration court, in other words when the Department of Homeland Security (DHS) is seeking to remove the alien to his/her home country because he/she does not have status here.

For the claim to be an "asylum" claim, it must (subject to some strict exceptions) be first asserted within one year of the date of the alien's last arrival in the United States.  Outside of the one year deadline, it is also possible to assert relief from removal in immigration court by claiming treaty rights known as "withholding of removal" and "withholding under the Convention Against Torture," or "CAT."  I will save discussion of the differences between all of these claims for another time, because I want to stay on message about delays.

The Al Jazeera America article is absolutely right about the length of time it takes for an affirmative asylum claim to be heard by USCIS.  An interview process that used to take a few weeks or perhaps months has now stretched into years, literally, due to extraordinary backlogs and lack of personnel. Three years sounds about right as a wait time for an affirmative asylum interview, but I believe it could easily be more.

The situation in immigration court is even worse.  I have some claims that have been arbitrarily put on hold for a "control date" of November 29, 2019!  Some of these cases were previously scheduled for "individual" (trial on the merits) hearings, and were unaccountably canceled by the court system. The reason is simple. The immigration court system lacks sufficient judges and administrative personnel to handle the huge number of cases it has.

When you consider that in many situations it is possible to have an affirmative claim denied by USCIS, and then referred immigration court for further review, you can readily see that some asylum claims can run 6-7-8 or more years for a "final" initial decision.  

After the denial of an asylum claim in immigration court, it is possible to appeal to The Board of Immigration Appeals (BIA).  Such an appeal could easily take two years. Following that, one could then file a petition for review with a Federal Circuit Court of Appeals. You could tack an extra two to three years on that as well.

I have some asylum cases that have been pending for eight years.

The Al Jazeera America article notes:

“As far as federal benefits are concerned, until a person is granted asylum he is not eligible for anything,” Deputy Legal Director of NGO Human Rights First Anwen Hughes wrote in an email to Al Jazeera. “And for the first 150 days the application is pending, he (or she) is not allowed to work, either. After 150 days the applicant can apply for a work permit, which takes 30 days to process.”

There are individual states, including New York and Maine, that offer some types of benefits, Hughes said, but that is not the norm in the United States.

“As a result, surviving especially during those first six months (and for however long it takes a person after that to find a job) is a serious material challenge,” Hughes wrote. “It’s also psychologically draining for applicants who really want to be working, helping their families, and keeping their minds off the problems that drove them here.”

I worked with Anwen Hughes, who is quoted above, a number of years ago on one controversial asylum case involving alleged "material support of terrorism" as a bar to asylum relief--yes, we did eventually get the client a grant of asylum--and can assure my readers that Anwen knows what she's talking about.  I see the problems she refers to on a daily basis.

How US immigration officers use dubious identity papers to deport people

This article, from Al Jazerra America, is rather interesting.  In my own practice I have encountered many situations where ICE (Immigration and Customs Enforcement, the internal enforcement bureau of the Dept. of Homeland Security) is frustrated in its attempts to remove people because it cannot obtain travel documents for them.  Certain countries simply do not cooperate with its requests, making removal impossible.  However, this is the first time I have heard of a dodgy "honorary consul" for Cameroon (an American in Texas who had never been to the country when he was appointed) use equally dodgy documents to help ICE deport people.

This, from the article, is more common: 

In a report last year, the American Civil Liberties Union said that officers with DHS appear to have provided false and misleading information to many deportees in order to secure their signatures on voluntary departure forms and formal deportation orders. According to Sarah Mehta, the ACLU researcher who authored the report, DHS officers have pressured individuals into signing voluntary departure forms and deportation orders. In some cases, people were told they would be released to go home if they signed the papers or that they would lose their children if they refused, Mehta said. Even people with legal status in the U.S. have sometimes been coerced into signing removal orders.

ICE also manages to deport U.S. citizens.  This is not an isolated occurrence: "Although no exact numbers exist, ICE regularly detains and deports U.S. citizens without ever providing them with a lawyer." Just "Google" "ICE deports US citizens" to get some idea of the problem.

Donald Trump: I would send Syrian refugees home

From the BBC regarding a Trump campaign stop in New Hampshire:

On Wednesday night, Mr Trump told an audience at Keene High School: "I hear we want to take in 200,000 Syrians. And they could be - listen, they could be Isis [Islamic State]."

Describing them as a "200,000-man army", he later added: "I'm putting the people on notice that are coming here from Syria as part of this mass migration, that if I win, if I win, they're going back."

As a private immigration attorney, my exposure to Federal refugee programs is limited (as opposed to individual asylum cases involving persons already in the USA, or who have made it to the US border seeking asylum).  But let's take a brief look at publicly available information about US refugee programs.

Certiorari Denied: Remembering the Roberts Court's Shameful Abandonment of Torture Victims

This piece by Dorothy Samuels, a "senior fellow at the Brennan Center for Justice at New York University school of Law," certainly resonates with me!  In it she enumerates three cases of US conducted torture of detainees, one a US citizen, where the US Supreme Court refused to review the cases.  Check out her concluding two paragraphs:

"The Bush White House disgraced itself by authorizing torture and failing to comply with constitutional limits and Congress disgraced itself by allowing it. But, as Jameel Jaffer of the ACLU says, "the signal failure at this point is the failure of courts to enforce those limits."

"In swatting away the appeals of torture victims with serial denials of review, the Roberts Court abdicated it crucial oversight role envisioned by the Constitution, further harmed America's reputation around the world and shut off one of the last remaining avenues for accountability."

The sad fact is that the Bush administration, operating directly from the office of the president and vice president, authorized torture in violation of international law and federal criminal statutes. The US Supreme Court did nothing about it, even when presented with an opportunity to grant torture victims the right to seek redress against the government. This is the essence of impunity.

The Bush Administration's torture policies are one of the principal reasons I became a Democrat. The defining moment for me came when I was representing a Tamil from Sri Lanka who had fled persecution and torture in his own country.  

This was during the period when Rumsfeld was advocating "enhanced interrogation techniques" that were "torture" by any common sense and legal definition of the term.

It quite a shock for me when I realized, while preparing an immigration court submission, that the Sri Lankan Government conduct I was claiming made my client a torture victim was less painful and injurious than what the United States Government was doing to its detainees.

For me there was no going back after that.

"We're rounding 'em up in a very humane way, in a very nice way."

That was Donald Trump holding forth on 60 Minutes last night how his administration will deport 11 to 12,000,000 "illegal immigrants."

Also, to show that he'll be a president with style, and class, we learned that the wall he intends to build along the entire length of the US Southern border with Mexico will be "a real wall. It'll be a wall that works. It'll actually be a wall that will look good, believe it or not. 'Cause what they have now is a joke. They're--they're ugly, little and don't work."  Also, "it's not going to be very expensive."

Underscoring the utter stupidity of this proposal is the fact that the population Trump proposes to uproot and return to their countries of origin is about the same as the State of Ohio.  That is to say, 11.5 million people.

With few exceptions, anyone in this country illegally who is apprehended by immigration authorities has a right to contest his "removal" (the term of art for deportation since 1996) in immigration court. And, in proper cases, even people with final orders of removal have rights to contest them if they can establish they will be persecuted in their home countries. (In the last two years I won two such cases).

Speaking from personal experience, I can tell you that our immigration court system is broken. To cite one example, in Newark Immigration Court where I practice mostly there is a present backlog of 27,000 cases for five (soon to be four) immigration judges.  The immigration court system cannot cope with the number of cases that exist now, before Trump's planned exodus.

I can only assume that Trump's appeal to the anti-immigrant base of the Republican Party is, like everything he does, all for show. However, the discerning reader will see in his statements a bit of a Trojan horse on immigration. He seems to propose some form of "amnesty" by suggesting that "If they've done well they're going out and they're coming back in legally."  I guess it has to be that way because, according to Trump, "we're going to have a tremendous, beautiful, wide-open door. Nice big door. We want people to come into the country."

For Trump's "plan" to work there would have to be major changes to the Immigration and Nationality Act. I don't see that happening at all, at least with a Republican House of Representatives.

I would also add that there's no nice or humane way to break up families. Trump's scheme is unworkable, would be ruinously expensive, and is plainly contrary to current immigration law.  It's just not happening, though it is troubling to think he might actually believe he could pull it off.

An Introduction of Sorts

Well, I've been meaning to do this for a long time.  I finally worked up the motivation after observing the horrific beginnings of the 2016 presidential campaign.

I'm a 66-year-old lawyer who has been practicing law since 1977. I was a "litigator" in Philadelphia for the first three years, where I did insurance defense work including, believe it or not, some maritime law.  I got sick of being an associate; of law firm politics; and the drudgery of cleaning up other people's messes; plus, things "weren't working out" with the firm. So in 1980 I became a corporate lawyer with a defense and industrial service corporation headquartered in Northern New Jersey (a pretty famous name in aerospace history, by the way).  There I "polished up the handle so carefully" that in 1999 I became the Company's general counsel.

I left corporate life in 2001 after major differences with the incoming CEO. I like to think that I'm the only General Counsel in American corporate history who was fired for winning the big case rather than losing it, but I suppose my former corporate masters would really say that I wasn't subservient enough. (As a fellow GC once told me when I was just starting out in my new role, "What you have to understand about this job is that you're nothing but a high paid flunky for management.")

I did find statement that rather disillusioning after having spent 20 years climbing to the summit of corporate law. Having been ejected from the corporate cocoon, I had to figure out what I was going to do with the rest of my career.

I settled on immigration law for variety of reasons.  First, almost all of us are immigrants to America in one way or another, and I grew up amid stories of my own Irish immigrant roots going back to the late 19th and early 20th centuries.  It stuck.  Second, I wanted to do something that was socially relevant.  The importance of immigration couldn't have been underscored more than by 9/11. Third, I really did want to try something new, and immigration law is about as far away as from corporate law as one can get.

Last but not least, after the end of my long first marriage, which coincided with my departure from corporate life, I started dating an "illegal alien" from Russia. I'm happy to say that I was able to "sponsor" her after we got married.  We are still together and she is now a naturalized American citizen.  So, my practice of immigration law had a personal element that made my clients' concerns very real to me.

One reason I've decided to speak up in this blog is because of the anti-immigrant madness we see infecting the Republican Party and nativist right wing now. The calumnies cast against my clients are so vile and ignorant that I feel compelled to speak out. My hope is that various case studies and "war stories" will show my readership what it's like being an immigration lawyer; and, more importantly, what the people whom I serve are really like.

Finally, you'll get a dose of fairly strong "progressive" politics in these pages. My political transformation mirrors my professional one. I've gone from being a "conservative" Republican preoccupied with national defense to a passionate Democrat who believes that the real threat to our democracy comes from within.