Now is Not the Time to Be Afraid

by W. John Vandenberg

“Don’t be afraid, John.”  That’s what a friend and client told me recently when she saw I was worried .  And I needed to hear those words.  It’s been a tough couple of weeks.  It’s been a tough few months.  And a tough several years, now that I think about it.  But she was right – now is not the time to be afraid.  Now is the time to be thoughtful, persistent, and bold.    

The “American carnage” spoken of by President Trump in his inauguration speech never described the America I know, I love, I fought for, and I believe in.  But carnage does accurately describe what is happening right now to America’s rich history of welcoming immigrants and benefiting from immigrants’ experience, education, and work ethic.  The Trump Administration is using every means at its disposal to delay, discourage, and deny immigrants a fair shot at making the United States their home. 

The list of changes – real changes – this Administration has made to the immigrant story in America is longer than most of us would believe. Here’s an incomplete list: 

  • Issuing a Presidential Proclamation on April 22, 2020 to ban issuance of new immigrant visas for 60 days.  The Proclamation keeps the door open for additional restrictions in 60 days (see below).  Members of Congress are pushing the President to make additional bars, including OPT for foreign students and EB-5 immigrant investors.
  • And now we have the Presidential Proclamation of June 22, 2020, which indeed enlarges the ban to cover H-1B‘s, L-1‘s, and H-2B‘s. These are work visas – work visas that U.S. companies use to innovate and propel the American economy forward.
  • The Muslim ban, which continues to bar legal immigration from several Muslim-majority countries, including Yemen, Iran, Libya, Somalia, and Syria.  It was recently expanded to even more immigrants of color, many of them Muslims, including Sudan, Nigeria, and Eritrea.  This blanket ban prevents parents and children from reuniting – breaking families every day.
  • Imposing a “wealth test” on immigrants seeking to become U.S. Lawful Permanent Residents.  The new I-944 form places a major burden on families, increasing the time and expense to apply for a greencard, and discouraging families from even applying for loved ones because the rules are vague and difficult to understand. 
  • Vastly increasing the number of denials of work visas to immigrants already in the United States.  From 2015 to 2017, denial rates of H-1B visas never went above 8%.  And why would they?  These applicants all have at least a bachelors degree or the equivalent, they are sponsored by U.S. companies that need them, and many earned degrees at U.S. universities.  But the Trump Administration has quietly rewritten the rules, giving no deference to previously-approved petitions, issuing Requests for Additional Evidence with little support in the law, thereby raising the denial rate to 32% in early 2019.  These are the workers who power our economy, the workers who create jobs (some good news here – after getting thoroughly trounced in the Federal Courts, USCIS has rescinded the Memorandums it used to reach these denial rates – we’ll see what happens next).
  • Slowing the adjudication of applications for green cards and U.S. citizenship.  The USCIS changed its policy and made interviews mandatory for employment-based immigrants.  This increased USCIS’ greencard backlog more than 35%.  And is actively delaying greencards for families and workers, not to mention delaying citizenship
  • Actively eroding the Immigration Court system’s integrity.  The attack on the Immigration Court system is especially brutal.  Setting case quotas for immigration judges.  Hiring immigration judges with no experience in immigration law.  Hiring Appellate Judges based on their high denial rate for asylum, even when those Judges have a history of formal complaints against them.  Using the Attorney General certification process to erode protections for asylum seekers who are victims of domestic or gang violence.  Removing Immigration Judges from cases where the agency believes they will not make the predetermined decision they want. And raising fees for appeals to rates not even applied by the U.S. appellate courts, thereby seeking to choke off appeals before they are even filed. This attack on Due Process – a right guaranteed by the 5th Amendment – is an attack on justice itself.

And there are more.  Literally, too many to list in this blog post.  It’s easy to feel despair.  But despair is not the answer.

The answer, as long as there have been immigrants seeking to come to America, is “don’t be afraid.”  And Immigration Attorneys’ role in pushing back has never been more important. We must use every ounce of our skill, knowledge, experience, and devotion to keep their clients here and ultimately successful. 

Don’t be afraid to litigate every case.  Immigration attorneys are powerful.  We win cases in courts where judges are weak, the government is strong, and our clients are presumed guilty.  Litigation in immigration court was once described as trying to operate on a patient with an assassin in the room.  To win, we must be agile, resourceful, and persistent, using our knowledge, experience, and wits to find solutions that win cases for our clients.  We have to do so even in these times when Due Process, and the Rule of Law, is being actively corroded from the top.  We, as attorneys, must have the courage to fight the cases.  And to be there by our clients’ side when the judge grants their case, or orders them deported – effectively banished from family, friends, and businesses they have often worked for decades to build.  To litigate these cases makes us stronger.  We must remember that government or immigration judges don’t sit beside a client who broke down in tears preparing for trial, who developed blisters on their face and hands from anxiety over recounting the reason they fled their home country.  We do.  And that makes us better attorneys, because we understand what is at stake, even though over time we are ourselves traumatized by it.  Don’t be afraid.  Be a litigator.

Don’t be afraid to use all the tools at your disposal.  Immigration Law is not fair.  It was never fair.  I draw inspiration from HIAS, the Hebrew Immigrant Aid Society.  In 1917, the U.S. Congress passed the Literacy Act, and this was quickly followed by the Immigration Act of 1924 which set harsh and unfair quotas intended to restrict immigration.  These restrictive measures led to many deportations from Ellis Island.  HIAS didn’t give up.  They went toward the fight, and even set up their own office on Ellis Island.  HIAS provided translation services, guided immigrants through screenings, lent them the $25 landing fee, obtained bond for others guaranteeing employable status, and argued before Boards of Special Enquiry to prevent deportations.  Between 1909 and 1919, HIAS interceded with 28,884 immigrants detained for a Board of Special Enquiry; they won 22,780 and lost 6,104 cases.  That means they lost more than a fifth of their cases.  But because they were not afraid to fight, they ultimately saved 22,780 souls – souls who built families and businesses and lives in the United States. The success of HIAS during a period of time very similar to the one we are living in now shows how valuable attorneys can be to the immigrants we serve.  We know the law – and the regulations, cases, memoranda, and operating instructions that control USCIS and the immigration courts.  We know how to enlist the help of Senators and Representatives for assistance moving a case toward completion.  And we know how to draft, file, and argue for assistance from Federal Courts, including Petitions for Writs of Mandamus, Petitions for Writs of Habeas Corpus, and Complaints for a Declaratory and Injunctive Relief. It is our responsibility to use all the tools we have to defend and advance the interests of our clients.   

Don’t be afraid to file applications.  The Trump Administration has made a concerted effort to kill legal immigration by all the means at its disposal.  An egregious example discussed above is he I-944, which has placed a great burden on families seeking to stay together and reunite.  As noted above, the requirements of the I-944 require extensive documentation, far more than required before, and more than is necessary to demonstrate sufficiency, and has been described as “an administrative strip search.”  The purpose of this form, clearly, is to dishearten, confuse, and intimidate immigrants seeking to file applications for their relatives and loved ones, as well as to make it more difficult for employment-based immigrants to complete the greencard process.  Again, don’t be afraid.  Remember that the adjudication of these forms is complex, and officers must weigh potentially unlimited factors to determine whether the applicant is or is likely to become a public charge.  That means it remains a gray area – the area where attorneys do our best work, because the answer can be what our clients need it to be.  Gray areas invite persuasion, and if that doesn’t work, litigation. Make a good faith effort, follow the law, and file the applications.  If we don’t file, the answer is always “no.”  That’s exactly what this Administration wants.  Don’t be afraid. 

Don’t be afraid to try again.  And again.  And again.  Because keeping our clients here in the United States is more than half the battle.  As immigration lawyers, we understand that Immigration Law changes every day, whether through memoranda, court decisions, or even a tip you learned from a USCIS officer at an interview. A client with an unwaivable ground of inadmissibility on Wednesday may be saved by a Board of Immigration Appeals decision on Thursday (I literally had this happen to several lucky clients when Matter of Arrabally was issued, drastically changing the consequences of traveling on Advance Parole).  A retired Chief of Cardiology at a prestigious hospital once confessed to me that as a young immigrant from Turkey he had been ordered deported.  But he had an excellent immigration attorney who obtained then-available “indefinite voluntary departure.”  The future physician managed to find relief while on indefinite voluntary departure, was granted a greencard, went to medical school, and no doubt saved thousands of American lives during his career.  It took persistence and grit for your client to get to the United States.  We have to show those same qualities as we advocate for our clients, because many of them, even most, they will eventually obtain legal status if they are here long enough.  Don’t be afraid.

Of course, there is a difference between being bold and being reckless. This Administration has made mistakes costly. For example, it moved to refer unsuccessful applicants for benefits to the Immigration Courts for removal (previously known as “deportation”) proceedings. This includes when an applicant for a U visa (victim of crime) and victims of domestic violence seeking VAWA (“Violence Against Women Act”) protection. Careful consideration must be given to weighing benefits against risks. Attorneys know this area well – risk management and mistake avoidance are the cornerstones of a good legal education. And we have an important role to play for our clients, because a good immigration attorney knows how all the parts of immigration work. As one former INS spokeswoman, Karen Kraushaar, stated in 2001, “”Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.” There are no perfect lawyers (or perfect physicians, for that matter). But proficiency, passion, persistence, and experience can make all the difference in the decisions that we and our clients take.

In sum, the Trump Administration is far from finished in its crusade to delay, deny, and stop immigrants from making the United States their home. Their plan is well underway, and they are working furiously to implement as many changes as they can under the cover of COVID-19 and unemployment. Immigrants desperately need excellent immigration attorneys. Now, 110 years after HIAS opened its office on Ellis Island, it is time for immigration attorneys to step forward for our clients. Now is the time to push back and advocate for our immigrant clients and their families. Whether an immigrant investor or a victim of gang violence, our clients have already risked their education, their livelihood, and often their lives to join each of us in building America into a unique country that rewards ambition, investment, competition, and risk-taking to constantly improve and re-invent itself. Don’t be afraid.

If you need legal advice, or would like to review your immigration options, please contact our office at (610) 664-6271 or visit our website to schedule a consultation. 

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Syrian Asylum Statistics – Who Knew? And What Now?

By W. John Yahya Vandenberg

USCIS has published the most recent asylum statistics, and you can see the Syrian asylum statistics as of May 2015 (thank you, AILA, for publishing this!).  There are some surprises, and we hope this will assist Syrians make the best immigration decisions while they are here.

Good news first…

What do you find in the statistics?  Well, I’m shocked that between 2011 and March 31, 2015, only 4,176 Syrians had applied for asylum!  I thought there would be many more, considering the murderous civil war that has now been raging since Spring 2011. A man at a site recently hit by what activists said was a Scud missile in Aleppo’s Ard al-Hamra neighborhood, February 23, 2013. REUTERS/Muzaffar Salman

But I’m also pleasantly surprised to see the approval rates — 83% so far in 2015, and 81% in 2014.  That’s significant, and a real positive sign for those Syrians seeking safety in the United States.  So long as they tell the truth, and their asylum case meets statutory requirements, it is quite likely they will be approved.

But what does it take to get an asylum case approved?  This is as good a place as any to say what asylum is, and what it isn’t.  Syrians must be aware that just because your country is dangerous and war-torn, USCIS doesn’t care.  Really.  They don’t.  There are a lot of countries in conflict; in fact, as of August 2014, there were only 11 countries in the entire world where there wasn’t conflict.

And don’t believe advice that you’ll qualify for “humanitarian asylum.”  Humanitarian asylum does not mean you get asylum because you are from a war-torn, dangerous country.  It only applies to people who experienced so much terrible personal persecution in the past that it would still be inhumane to send you back even though country conditions are better .  Check out Matter of Chen and Matter of L-S- and read them for yourself.  That’s the law on humanitarian asylum.  Just because a relative was randomly killed by a sniper or an explosion, or there is fighting in your hometown, or your country is in the middle of a terrible civil war, that’s generally not enough.

On the other hand, a person may qualify for asylum if they fear returning to their home country based on a qualifying ground, such as political opinion, religion, or other designated categories.  If you are afraid to return to your country and think you might qualify for asylum, schedule a  consultation with the best, most experienced, and honest immigration attorney you can find.  He or she will analyze your history, fear, family, and other factors, and tell you what they think about your asylum claim.  With this advice, you can decide whether or not you might qualify for asylum, and your chances of success.

Despite the high approval rate, the numbers tell a sadder story –there still remain 2,170 Syrian cases pending and awaiting a decision.  That’s a lot of Syrians — more than half of all applicants since 2011! — without an answer on their applications.  Syrians are wondering why there is such a delay.  And when people wonder, they either ask people who don’t know the answers, or they make up their own reasons out of their past experiences or internet research.

Why the delay?  Is it me?

To my knowledge, there is no conspiracy against Syrian asylum seekers, or any special reason for delaying Syrian cases .  USCIS has confirmed that they are randomly selecting a small number of asylum applications and scheduling them for interviews within 42 days.  But the vast majority are on hold for a year or two.  This causes understandable frustration among the Syrian community (and trust me, every other community as well).  One guy files for application, gets his asylum interview in a month.  Another guy files his, and more than a year later he has no interview.  Is there something wrong with him or his background?  Is it because the other guy has a good lawyer?  No.  It’s just raw numbers.  The Syrian community needs to look at the big picture — they are not alone. In fact, Syrians are only a small percentage of all the asylum cases filed and pending.

USCIS has published its statistics for asylum, most recently from February 2015.  In its “Asylum Office Workload” document, as of February 2015, there were 78,821 asylum applications still pending — meaning no decision had been made, whether because the interview had not yet been scheduled, or because USCIS was still deciding whether to grant asylum or not.  Compare this with July 2014, when there were 55,324 applications still pending.  The number of pending applications is going up, not down, even though USCIS is hiring new officers and bringing in former asylum officers to process this huge surge of cases.

The reason for the backlog is the record number of mothers and children seeking refuge from Mexico and Central and South America.  USCIS, understandably, is using its resources to administer credible fear interviews to the families coming across the border in such huge numbers; if the mother/child meet the credible fear standard, they are eligible to pursue asylum status and remain in the United States.  So long as these refuge seekers keep coming to the border, USCIS is going to continue to see the number of pending asylum cases go up, and wait times are going to get longer and longer for those who have already applied.

Any options?

So, what should Syrians do?  It is of critical importance that Syrians apply for and maintain Temporary Protected Status (“TPS”) if they are eligible to do so.  (NOTE: the deadline for new Syrian TPS applications is JULY 6, 2015 – so apply now if you qualify and have not already!)

You can think of TPS as “green card lite.”  TPS gives you the ability to legally work in the USA and travel.  They can study, they can drive, they have many of the rights of green card holders because of TPS.  Essentially, TPS ensures you remain in the USA for a long, long time. A basic touchstone of immigration law is that you take what you can get, when you can get it.  The deal can always get better later, with a new law, a new relationship, a new job, or becoming a victim of crime or spousal abuse — anything.  So long as you are in the United States, you’ll likely be eligible for something new and better, so long as you maintain TPS or some other lawful status.

Some Syrians are skeptical about TPS, and worry that it could end at any time.  I don’t agree with that; Hondurans have had TPS renewed every year since 1999 — that is 17 years and counting!  During these 17 years, many Hondurans have obtained a green card through work, or marriage, or even their children.  Immigration, I always say, is a marathon, not a sprint.

Also, Syrians should keep in mind that the Syrian civil war is likely to drag on for a long time.  It will never be the same country they left, even if the war ended today.  Any doubts?   Ask the Bosnians.

If you are a Syrian and considering whether or not to apply for TPS, my advice is APPLY.  You can always leave it behind, but please take advantage of it now.  As Syrian passports start to expire (with few avenues to extend or renew), it is getting harder, not easier, to come to the United States. And the United States is still a place where Syrians can not only survive, but thrive.  Dubai may be glitzier, but remember that protections for non-nationals are slim, and can be rescinded at any time, for any reason.  In the United States, your civil rights are more protected than in most countries of the world, and with TPS, so long as you work hard and don’t break the law, your stay is assured for years to come.

Can’t we speed up this process?!?!?!

We are often asked by Syrians if we can speed up the asylum process.  Perhaps, but it is on a case-by-case basis, and you should consider carefully whether to do something to try to get a resolution of your case, or not.

Some Syrians ask about filing a Mandamus lawsuit to get their asylum applications heard.  A “Mandamus” is a petition to a District Court Judge requesting that the USCIS adjudicate an application.  The Judge cannot force USCIS to grant your asylum; she can only order them to make a decision on your case.  Some District Courts routinely grant them.  We are hearing accounts of the lawsuit being filed and the interview being granted shortly after.  Other courts are quite hesitant.  It depends on the District Court.  For example, if the government tells the District Court Judge that they have “security concerns” about the asylum applicant, the Judge may not issue the mandamus, allowing the government more time to determine if the person is a threat or not.  Alternatively, the Asylum Office could agree to make a decision, then deny the asylum if the person maintains lawful status, or “refer” the case to the Immigration Judge for removal proceedings if they aren’t.  It’s a personal decision whether or not to pursue this course of action.  And it is generally expensive.  You should also be prepared for an outcome you may not like.

Sometimes, a Congressperson can assist.  You can find the contact information for your Senators and Representatives on-line.  They can inquire through the USCIS Congressional Liaison to learn where your case is.  But in my experience, there is little they can do to speed up the process in most cases.

As in most things law-related, there are exceptions .  For example, we were successful in requesting the Asylum office to expedite an asylum decision for a man whose wife and children remained in Syria, where they were obviously in danger.  This is because asylee’s family members can apply to bring their wife and children to the United States.  Another time, a Senator’s office was helpful in obtaining an asylum interview for a young Syrian who would be denied a college scholarship and financial aid if he didn’t have asylum.  These are cases that had an emotional reason for everyone to get involved, including an asylum officer.  They all wanted to help in these cases.  Other times, where there wasn’t an emotional incentive, we were unsuccessful in expediting the case.

To be fair, the Asylum Office has a strong argument to delay interviewing most asylum cases.  In the case of Syrians, most of have TPS, which means they are here legally, working and traveling.  The Asylum Office understandably feels they should first interview the children and mothers sitting in detention centers without any possibility of being released.  Recently, Associate Attorney Katelyn Hufe represented a child client at the USCIS Newark Asylum Office (which is actually located in Lyndhurst, by the way).  She said that almost everyone in the waiting room was a child!  That is genuinely sad.  And the story behind the statistics is that the Asylum system is flooded.  That is the reason Syrians are not getting scheduled for asylum interviews.  It is not because the Asylum Office or the Department of Homeland Security is against Syrians.  It’s just the crushing weight of 80,000 asylum applications, and only 350 asylum officers in the entire United States to adjudicate them.

In the end, Syrians should apply for all the benefits that they qualify for.  TPS is ideal, and asylum can be a long-term plan. If you fall in love with a US citizen or greencard holder, that’s great, too.  If you are a victim of crime, be sure to cooperate with the police, no matter what your status is, so you may qualify for a U visa.  If your US citizen or green card spouse abuses you — it doesn’t matter if you are male or female — you may qualify for VAWA.  Our advice is for Syrians to consult with a good, honest, experienced immigration attorney — not a translator, not an accountant, not a family friend — to best determine what your options are.  There is no substitute for asking a good immigration attorney for advice; good immigration attorneys not only have years of experience and access to information not generally available to the public, but they also have the benefit of living through the progress of many immigration cases.  If you have questions about your options in asylum, TPS, or even obtaining lawful U.S. Permanent Residence through a green card, contact our office and set a consultation.  We’ll do our best to give you all your options, so that you can make the best decision for you.  If you are in a different part of the United States, we’ll do our best to find you a good local attorney.

Thanks to Nadeen Aljijakli, author of “Syrians Under Fire: Seeking Asylum in America” for her assistance in writing this article!