Articles Posted in Asylum Law

8358967030_aef1cd0812_zThe Trump administration is quickly mobilizing resources to facilitate the massive deportation of undocumented persons living and working in the United States, and to secure the U.S. border.

A new 90-day progress report prepared by the Department of Homeland Security outlines how the agency is planning on implementing the provisions of the Executive Order 13767 entitled “Border Security and Immigration Enforcement Improvements” signed by President Trump earlier this year. Although the progress report is only a preliminary assessment of how the agency will enforce the executive order, the report reflects what immigration enforcement might look like in the near future.

Securing the border: Regarding border security, the progress report outlines that U.S. Customs and Border Protection is taking immediate action to plan, design, and construct a physical wall on the southern border between the United States and Mexico. Specifically, the report states that CBP is partnering with the U.S. Army Corps of Engineers to design and construct prototypes to expand the southern border, and has submitted a request for funding from Congress for $20 million.

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The Department of Homeland Security has released its end of the year statistics for fiscal year 2016 reflecting immigration enforcement priorities for convicted criminals, threats to public safety, border and national security. The report found that during fiscal year 2016, 530,250 individuals were apprehended nationwide, and a total of 450,954 individuals were removed and returned to their countries of origin. For their part, the U.S. Border Patrol reported a total of 415,816 apprehensions nationwide, an increase in 78,699 persons, when compared to fiscal year 2015. For their part, the U.S. Immigration and Customs Enforcement (ICE) arrested 114,434 individuals during fiscal year 2016, a decrease in 10,777 persons, when compared to fiscal year 2015. During fiscal year 2016, the U.S. Customs and Border Protection (CBP) Office of Field Operations identified 274,821 inadmissible individuals at ports of entry nationwide, an increase in 21,312 persons, when compared to fiscal year 2015. Lastly, ICE reported that during fiscal year 2016 they removed or returned 240,255 individuals, an increase in 4,842 individuals when compared to fiscal year 2015.

The report highlighted that the Department of Homeland Security has successfully honored the Obama administration’s immigration enforcement priorities announced in November 2014, which prioritize the deportation of national security threats, individuals attempting to enter the United States unlawfully, and convicted criminals. As evidence of this, the report states that during fiscal year 2016, ninety-eight percent of initial enforcement actions involved individuals which fell into one of three enforcement priority categories. The report indicates that ninety-one percent of apprehensions fell within the top priority for individuals who either presented a national security threat, attempted to enter the United States unlawfully, or were convicted of a crime (including gang members).

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USCIS has announced that beginning October 5, 2016 the validity period for initial and renewal employment authorization cards (EADs) will be extended from the previous one-year validity period to a two-year validity period, for asylum applicants eligible to receive employment authorization. EAD applications pending as of October 5, 2016 and all EAD applications filed on or after October 5, 2016 will receive 2-year EAD cards.

Asylum applicants cannot apply for employment authorization with their initial asylum applications. Applicants with a pending asylum application, who have filed for asylum on or after January 4, 1995, must wait until at least 150 days have passed since filing of their asylum applications (not including any delays that were caused by them) before applying for employment authorization. Once at least 150 days have passed since filing of the asylum application, and provided the application is still pending with USCIS, applicants may apply for employment authorization by filing Form I-765 Application for Employment Authorization using the (c)(8) asylum classification. On average it takes approximately 90 days for the I-765 to be processed, and for the employment authorization card (EAD) to be mailed to the applicant. Once you receive the employment authorization card you may begin to work immediately. You may also obtain a driver’s license for the validity period of your employment authorization, and a social security number by presenting your employment authorization card at the DMV and SSA near you. There is no fee to apply for your first employment authorization card if your asylum application is pending with USCIS or you have been granted asylum. If you are applying for a renewal EAD card (it is not your first time receiving an EAD) your application is subject to the filing fee.

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On September 7, 2016 the United States Citizenship and Immigration Services (USCIS) published the Affirmative Asylum scheduling bulletin which describes how the service will prioritize the adjudication of affirmative asylum petitions. USCIS has developed a three tier system to prioritize scheduling of interviews and adjudication of petitions.

USCIS has indicated that as of December 26, 2014 applicants who were scheduled for an interview, and who subsequently rescheduled their interview themselves, or had their interview rescheduled by USCIS, will fall under the first tier. These applicants will receive top priority. Applications that were filed by children will fall under the second tier and receive secondary priority for interview scheduling. Lastly, any other pending affirmative asylum applications are currently being adjudicated in the order that they were received by USCIS. Consequently, the oldest cases that were received by USCIS (cases that were received the earliest) are scheduled first. These applications fall under the third tier and have the lowest priority.

In sum, applicants who were rescheduled for an interview and child applicants will receive first priority.

All other applicants will be required to wait in line for an interview based on the date USCIS received their asylum application. The following table provided by USCIS outlines estimates of scheduling dates for asylum interviews by month and year. The table is based on current caseload and volume of applications waiting in line for an interview. Interviews are currently being scheduled taking into account time and resource constraints of local offices.  It is not uncommon for asylum offices to divert their resources to defensive asylum interviews.

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A new factsheet published by AILA and Kids in Need of Defense (KIND) provides statistics on the representation and removal of unaccompanied children and families facing removal proceedings before immigration court. The data concludes that an overwhelming number of unaccompanied children and families are ordered removed from the United States, despite having demonstrated a legitimate fear of persecution or torture and passing a credible fear interview, making these individuals viable candidates for asylum, prosecutorial discretion, or other relief from deportation. This is due to a lack of legal representation and legitimate concern for the due process of law.

Families Passing Credible Fear in preliminary interviews with federal asylum officers

On the whole, the majority of families in detention centers demonstrate a legitimate fear of persecution or torture and maintain a high rate of approval during credible fear interviews;

  • In preliminary interviews with asylum officers, approximately 90% of families successfully demonstrated a credible fear of persecution or torture;
  • Upon completion of these interviews, approximately 88% of detained families pass their credible fear interviews;
  • The USCIS Asylum Office has indicated that the credible fear passage rates remain unchanged—at a rate of 90%;
  • DHS data indicates that 53% of 121 individuals, arrested by DHS during the January raids, lacked legal representation before immigration court;

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Following a recent surge in apprehensions of undocumented immigrants at the Southwest border, the Department of Homeland Security announced that, beginning January 1st Immigration and Customs Enforcement (ICE) engaged in a concerted nationwide crackdown, taking adults and some children into custody, who have evaded their orders for removal. In a recent press release, the Secretary of DHS, Jeh Johnson indicated that the crackdown occurred as a result of President Obama’s November 2014 executive action on immigration, which put in place new priorities for removal, including the removal of convicted criminals, individuals posing a threat to national security, individuals apprehended at the border or who were found to have entered the United States unlawfully after January 1, 2014. In November 2014 President Obama had implemented these new priorities in an effort to secure the border. In the press release, Jeh Johnson added, “as I have said repeatedly, our borders are not open to illegal migration; if you come here illegally, we will send you back consistent with our laws and values…individuals who constitute enforcement priorities, including families and unaccompanied children will be removed.”

According to the Department of Homeland Security, Central American migrants were removed and repatriated at an increasing rate since the summer of 2014. During this time, there was a surge in the number of families and unaccompanied children from Central America attempting to cross the southern border illegally. In response to this surge, DHS collaborated with the Mexican, Guatemalan, Honduran, and Salvadorian governments to decrease these numbers. According to Jeh Johnson the collaborative efforts were temporarily successfully. In 2015 the number of apprehensions by the U.S. Border Patrol decreased dramatically to 331, 333. Fiscal year 2015 experienced the lowest amount of apprehensions on the southern border since 1972. Recently, an increased rate of apprehensions resurfaced. This sudden spike resulted in the January 1st crackdown prompting ICE to action. As part of the crackdown, dozens of female agents and medical personnel were deployed to assist with the apprehension and removal process. According to DHS, in cases involving medical urgency or other reasons, ICE exercised prosecutorial discretion. As stated by DHS, enforcement operations will continue as needed in collaboration with state and local law enforcement.

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Last week, in a 289-137 vote the House of Representatives overwhelmingly voted in favor of a bill that would require a comprehensive background check to be conducted for every Syrian and Iraqi seeking refugee admission to the United States. Among its provisions, the bill, better known as the American Security Against Foreign Enemies Act of 2015 (American SAFE Act of 2015) will require supplemental certifications and background investigations to be conducted before a Syrian or Iraqi refugee can be admitted to the United States. These additional security protocols will require multiple federal government agencies to work together in order to determine whether 1) such an alien poses a threat to the national security of the United States and 2) whether it is in the public interest of the United States to admit the alien based on the findings of the security checks conducted. The bill received overwhelming support from Democrats and Republicans alike amid the recent terrorist attacks claimed by ISIS leaving 129 dead and 353 wounded in the city of Paris. Though the bill will need to pass through the Senate before it can become law, the House’s overwhelming support for the bill has blocked the President from using his veto power.

Specifically, the bill will apply only to Syrian and Iraqi nationals referred to in the bill as ‘covered aliens.’ A covered alien means any alien applying for admission to the United States who is either a) a national or resident of Iraq or Syria b) has no nationality but whose country of last habitual residence is Iraq or Syria c) has been present in Iraq or Syria at anytime on or after March 1, 2011.

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Recently, the Federal Register published two new exemptions to the Immigration and Nationality Act on Wednesday by the Departments of Homeland Security and State mean that who provided “insignificant” or “limited” material support for terror groups will no longer be automatically denied eligibility from asylum or refugee status.

An unknown number of people currently in the process of being deported, as well as about 3,000 people with pending asylum cases will be affected by this rules change. It will likely help Syrian refugees who would otherwise be blocked from receiving U.S. aid by the existing rules.
The new exemptions apply to “limited material support.” A DHS spokeswoman reported that the term is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”

An asylum seeker is a person who has fled their own country and applies to the government of another country for protection as a refugee.

According to the United Nations Convention and Protocol relating to the Status of Refugees (the Refugee Convention), a refugee is a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their:

* race