U.S.-Canada Asylum Treaty Found Unconstitutional

On July 22, 2020, a federal Canadian judge ruled that an asylum treaty between the United States and Canada known as the “Safe Third Country Agreement” is unconstitutional. A copy of the decision can be found here. The Safe Third Country Agreement (STCA) mandates that refugees must seek protection in the first country they arrive in. The Canadian judge deemed that the agreement with the U.S. violates Canada’s charter of human rights “because it returns asylum-seekers to the U.S., where they are ‘immediately and automatically imprisoned’ by U.S. authorities, often under inhumane conditions.”

The Safe Third Country Agreement came into effect in 2004. Since that time, many refugees have been denied entry into Canada because they arrived in the U.S. first, a designated “safe” country, where they could seek asylum. The ruling made by Federal Court Judge Ann Marie McDonald states “that the act of sending people back to the U.S., where they were at risk of imprisonment, violated their rights to life, liberty, and security.”

Canada’s Justice Department has thirty days to decide whether to appeal the decision. One of the applicants who challenged the Safe Third Country Agreement, Nedira Jemal Mustefa, was arrested after trying to enter through the Canadian Border from the U.S. She was placed in solitary confinement for one week and describes “losing 15 pounds as a result of not eating, saying that she was given pork even though she told officers she could not eat it for religious reasons.”

The Safe Third Country Agreement has raised more controversy since President Donald Trump took office and began carrying out the administration’s effort to limit asylum as well as other forms of immigration to the U.S. Moreover, “The deal has also been at the center of intense debate in Canada because a loophole allows asylum seekers who cross the border at unauthorized points of entry to proceed into Canada and file their claims.”

Overall, this new ruling further highlights how unwelcoming the U.S. has become to refugees. Unfortunately, the U.S. is becoming less and less of a haven for individuals fleeing persecution and harm in their home countries. Other countries have taken notice including Canada. Time will tell if similar decisions will follow.

President Trump’s Proposed Changes to Asylum Law

This week, the U.S. Departments of Homeland Security and Justice released a draft rule, proposing severe changes that would make it increasingly difficult for immigrants to seek asylum in the United States. The complete draft rule can be found here and is set to be published on June 15, 2020 and will be open for public comment.

Since President Donald Trump took office, one of the administration’s main goals has been to impose tight restrictions on the immigration system, many of which have had a devastating impact on immigrants and their families all throughout the country and abroad.

The proposed rule to the asylum system is perhaps one of this administration’s toughest yet. According to CNN, “Under one proposed change, an individual’s asylum claim could face greater scrutiny if the person traveled through at least one country while on the way to the US but didn’t seek refuge there.”

In addition, the proposed rule states that an adverse factor for asylum seekers would be if they were living unlawfully in the U.S. for more than one year prior to seeking asylum as well as “failure to file taxes or having a criminal conviction — even if it was reversed, vacated or expunged — could count against an individual’s asylum claim.”

According to Sarah Pierce, a policy analyst for the U.S. Immigration Policy Program, “A lot of these provisions have been in the works with the administration for years . . . Rather than issue them as separate regulations, the administration has lumped together a lot of different provisions in this behemoth, Frankenstein asylum regulation.”

The current administration’s efforts to cripple the legal immigration system know no bounds. This proposed rule will severely impact immigrants who fear death or serious bodily harm to themselves or their families if they were to return to their home countries.

The majority of asylum seekers travel to the United States to seek refuge from harm that their own governments cannot protect against. Once a safe haven for refugees, the United States has become an increasingly difficult place to obtain asylum. This proposed rule along with other policies and regulations that the current administration have put into place over the last three years continue to wreak havoc on immigrants and their families who merely seek a better life in the United States. As a firm, we will continue to advocate for the rights of immigrants and their families in these tough times.

A “Safe” Third Country Agreement that is Unsafe

Beginning December 2019, the United States has begun taking Honduran and Salvadoran asylum seekers at the southern U.S. border and putting them on airplanes headed to Guatemala.  In July of 2019, the United States signed an agreement with Guatemala regarding the process.  The United States threatened to impose tariffs if Guatemala declined to sign the agreement.

According to the agreement, any person who travels through Guatemala on the journey to the United States must seek asylum in Guatemala.  Any person who does not seek asylum in Guatemala is subject to being sent to Guatemala.

Human rights migrants and activists have strongly opposed the agreement given Guatemala’s high rate of gang violence and crime rate.  Asylum seekers are likely to be placed in peril once sent to Guatemala.  Many asylum seekers who arrive at the U.S. border are escaping life-threatening situations and are now more at risk of being sent to a country in which they have never resided.

The United States is currently sending Honduran and El Salvadoran asylum seekers to Guatemala every two days via plane.  According to the Washington Post, “Many arrive with the same question: ‘Where are we?’”   Migrants have been placed on planes without knowing where they are going and without further instruction regarding what to do once they are arrive in Guatemala.

When they arrive in Guatemala City, the migrants receive little information about the asylum application process.  If they don’t immediately apply, they are told to leave Guatemala within 72 hours.

The United States has signed similar agreements with Honduras and El Salvador, but they have yet to take effect.

New Proposed Restrictions on Asylum Seekers

On December 18, 2019, the Trump administration proposed a regulation which includes new reasons to bar migrants from claiming asylum in the United States.  The proposal will go through a public comment period before it is finalized.  The new regulation would add further restrictions for migrants in addition to current policies enacted by the administration in recent years.

The proposed regulation is being described by the Justice Department and the Department of Homeland Security as a method to provide more resources to the asylum cases filled by non-criminal aliens.

Current laws prohibit migrants from obtaining asylum if they have committed serious crimes such as murder, rape, and drug trafficking.  The new rules add some felonies and some less serious misdemeanors to the list of crimes that would disqualify asylum seekers.  The additional disqualifying crimes include:

  • a conviction for any felony under federal or state law
  • alien smuggling or harboring
  • illegal reentry to the United States
  • a conviction for any law involving criminal street gang activity
  • driving under the influence of an intoxicant
  • a conviction for any law regarding domestic violence
  • a finding that a person has engaged in domestic violence, even without a conviction
  • false identification
  • unlawful receipt of public benefits
  • possession of a controlled substance or paraphernalia

While some of the additional disqualifying crimes are serious crimes, others are much less serious, such as using a false identification and driving under the influence.  Some criminal acts would not even require a conviction in order to be barred from asylum, such as being found by an adjudicator of engaging in domestic violence.

In an immigration system that is already challenging, a small lapse of judgement could have life altering complications for asylum seekers attempting to enter the United States lawfully.

The Assault Against Asylum: Family Groups

The current presidential administration has been engaged in an unprecedented assault on the right to apply for asylum and to have adequate procedures to handle asylum claims.  One particularly painful example is the decision of Attorney General William Barr in a case called Matter of L-E-A-.  In this case, the Attorney General overturned the decision of the Board of Immigration Appeals (BIA) and issued his own decision to replace it.

The Attorney General’s decision makes it more difficult for certain people to apply for asylum.  Asylum applicants must show that the persecution they suffered in the past, or that they fear in the future, is because of one or more of the following five reasons:

  • race
  • religion
  • nationality
  • political opinion
  • membership in a particular social group

The reason of “membership in a particular social group” is complicated.  One such group is family.  For example, a person might be targeted by her country’s government or by gangs or rebel groups in her country because of her connection to her family.  Perhaps the person’s father is involved in politics, and the government targeted her to retaliate against her father’s political activities.  For years, the BIA and numerous federal courts of appeals concluded that a person like this woman is a member of the particular social group consisting of her immediate family.  In other words, she would be eligible to seek asylum because she was targeted for being her father’s daughter.

In Matter of L-E-A-, the Attorney General just made it considerably more difficult for a person like this to seek asylum.  The Attorney General indicated in the new opinion that if a person claims family as a particular social group, that group would be established for the asylum claim only if the group is “distinct in the society.”  It is not enough, according to the Attorney General, that the family is “set apart in the eye of the persecutor.”  The family must be perceived as distinct within the society.  The Attorney General says that the “average family … is unlikely” to be “recognizable by society at large.”

If, at this point, you are scratching your head and wondering what the Attorney General means, you are not alone.  In my view, the Attorney General is trying to close the door on many people who otherwise would have valid asylum claims.

Chaos at the Border: Tent Courts

In a previous blog post published on our website, we discussed the Remain in Mexico policy, formally known as the “Migrant Protection Protocols.”  This policy forces immigrants seeking asylum at the southern border to wait in Mexico until an asylum hearing is scheduled before an Immigration Judge.

The Texas Observer reports that “as of mid-September, more than 45,000 migrants have been returned to Mexico to await their court proceedings” pursuant to the Remain in Mexico Policy.

As an expansion of this policy, the Department of Homeland Security (DHS) has built what have come to be known as “tent court facilities” along several ports of entry at the southern border including in Laredo, Texas and Brownsville, Texas.  Immigration hearings are being held in these tents even though immigration judges are not physically present.  Instead, immigration judges appear via teleconference from immigration courts miles away.

This process has caused confusion among immigrants at the southern border as well as for immigration attorneys.  Lisa Koop, a lawyer at the National Immigration Justice Center, described her experience representing immigrants at these courts.  According to CNN.com, “Koop and her clients were able to briefly meet in small, air-conditioned rooms before the hearings, which began at 8:30 a.m.  During the hearings, Koop described how migrants saw the immigration judge on a screen, but not the Immigration and Customs Enforcement attorneys, adding that it was ‘often hard to hear’ them.”

Currently, approximately 19 judges from three immigration courts are holding hearings via teleconference.  They can be seen on video.  Although immigration courts are supposed to be open to the public, access to these tent facilities has become difficult because they are within Customs and Border Patrol property.  Entry is allowed on a case-by-case basis, and attorneys must file proper documentation in order to enter the facility.  If an individual is denied access to the tent facilities, they must appear at the immigration court where the immigration judge is conducting the teleconference from in order to observe hearings.

An immigration judge has criticized the presence of these tent courts.  Ashley Tabaddor, an immigration judge in California and president of the National Association of Immigration Judges, states, “We’ve seen a number of issues.  One has to do with the sheer volume of cases that judges are being assigned, just [an] unsustainable demand to handle two, three times the cases that they would otherwise be assigned.” She further adds, “The other big issue has to do with the logistical challenges that the respondents have in trying to secure counsel, which means the judges have to bear the brunt of that shortfall.”

It is clear that the creation of these tent courts by DHS poses many problems for immigrants, immigration attorneys, and immigrations judges alike.  This is yet another way in which the current administration has targeted asylum seekers in an effort to deter immigration to the United States.  Immigrants who are seeking asylum at the southern border are being forced to face more hurdles than the many obstacles that already exist solely because they fear return to their home countries.  For how long the Remain in Mexico policy will remain in effect is unknown, but for the time being, it will continue to cause difficulty for asylum seekers and those attorneys wishing to represent them.

Another New Policy: Indefinite Detention for Some Asylum Seekers

Attorney General William Barr recently issued a decision that overturns a policy that is at least 14 years old, and which threatens to keep many asylum applicants in jail while their cases are pending for months or years.

In Matter of M-S-, issued on April 16, 2019, the Attorney General decided that for persons who enter the United States without permission and who are encountered by U.S. immigration officials shortly after their entry, and who seek asylum, these persons are not eligible for bonds to be released from detention.  The only options for these persons are to remain in detention until the completion of their cases in Immigration Court (which could last for months or years), or to be released from jail on parole from U.S. immigration officials.

The Attorney General’s decision overturns a decision of the Board of Immigration Appeals from 2005.

Because the Attorney General’s decision has the potential to require the detention of so many persons, the Department of Homeland Security requested that the Attorney General delay the effective date of the decision.  The Attorney General agreed, and has delayed the effective date of the decision for 90 days, so that U.S. immigration officials may acquire more facilities to detain asylum applicants.  It appears that the new policy will go into effect on or around July 15, 2019.

The Attorney General’s decision appears to be yet another policy shift by the Trump Administration to try to discourage persons from applying for asylum and to make it as difficult as possible for those asylum applicants to navigate the legal system.  Winning asylum in the United States is difficult even under the most favorable conditions.  Those persons seeking asylum while in jail face many more obstacles.  It is much more difficult to meet with attorneys and others who wish to help the persons prepare their cases.  There is much less time to prepare cases, because detained persons are typically on court schedules that progress much more quickly that those who are not in jail.  It is much more difficult for jailed persons to communicate with family and friends to help to prepare the case and obtain documents in their home countries to help prove their asylum claims.

The Trump Administration will also further burden U.S. taxpayers by spending more money on detaining asylum applicants for months or years at a time.

As with other new policies, the Attorney General’s decision in Matter of M-S- will very likely be appealed in court.  The final outcome of the new policy is uncertain.

“Remain in Mexico” Policy: Devastating for Asylum Seekers

By federal law, an immigrant may seek asylum at any port of entry or from anywhere inside the United States.   Immigrants seeking asylum have been allowed to remain in the United States, pending a decision on their case.  A new Trump Administration policy threatens this process.

On January 24, 2019, the Department of Homeland Security (DHS) began carrying out the “Remain in Mexico” policy, formally known as the Migrant Protection Protocols, at the San Ysidro port of entry.  This policy forces immigrants seeking asylum at the southern border to wait in Mexico until an asylum hearing is scheduled before an Immigration Judge.

There are few exceptions to the policy.  Unaccompanied minors, citizens and nationals of Mexico, and anyone who fears persecution in Mexico may remain in the United States.  However, the burden is on the asylum seekers to establish that they are “more likely than not” to face persecution on the account of a protected ground in Mexico if they wish to remain in the United States.

In addition to imposing a more stringent standard for asylum seekers, the “Remain in Mexico” policy jeopardizes an asylum seeker’s access to legal counsel.  United States Citizenship and Immigration Services (USCIS) has stated that they are unable to provide access to immigration attorneys during the assessment of an asylum claim between the asylum seeker and a USCIS officer.  An asylum seeker may not apply for appeal or reconsideration of the assessment made by USCIS.

Asylum seekers awaiting their hearing in Mexico will face difficulties in finding a U.S. based immigration attorney to guide them and prepare them for their hearing.  The “Remain in Mexico” policy also imposes increased burdens on U.S. based immigration attorneys who wish to represent asylum seekers who are forced to remain in Mexico.  Finding a means of communication between clients and attorneys will prove difficult across international borders.

The “Remain in Mexico” policy jeopardizes the safety of asylum seekers while they remain in Mexico.  It is likely that they will face exposure to kidnapping, murder, assault, and other types of harm based on the current country conditions in Mexico.  While the Mexican government has announced that it will give protection to asylum seekers affected by the policy, no additional details have been given including where asylum seekers will live or in what type of housing.

On April 8, 2019, a federal judge in San Francisco halted the “Remain in Mexico” policy, following a legal suit brought by asylum seekers and other organizations represented by the American Civil Liberties Union (ACLU).  The judge issued a preliminary injunction, ruling that the plaintiffs were likely to show that the policy violated federal regulatory law.

The Ninth Circuit appeals court reinstated the policy on April 12, 2019.  This reinstatement will remain in force while the parties submit arguments to the court addressing the government’s desire that the policy remain in place throughout the whole appeals process.  Whether the government at this time will continue returning asylum seekers to Mexico remains to be seen.

The process of seeking asylum in the United States already imposes a high burden on asylum seekers who seek refuge in this country.  The “Remain in Mexico” policy places additional hurdles that jeopardize the safety of asylum seekers as well as their access to legal counsel.  This policy sets forth a more stringent standard that asylum seekers must face in order to establish their fear of return.  Whether this policy will eventually be struck down by the federal courts hangs in the balance.

A few thoughts about affirmative asylum, Part 2

This is the second posting about the “affirmative asylum” process.

Please click here to read Part 1.

As with all applications for asylum, the task for the applicant is to show that he or she has a well-founded fear of being persecuted in his or her country of origin by the government or by individuals or groups that the government cannot or will not control.  In addition, the applicant must show that the persecution (or fear of persecution) is because of at least one of the following five reasons:  the applicant’s (1) race, (2) religion, (3) nationality, (4) political opinion, or (5) membership in a particular social group.

Another important requirement is that the applicant submit the asylum application within one year of the applicant’s most recent entry to the United States.  If the applicant submits the application more than one year after the most recent entry, then the applicant will need to show that there were either exceptional circumstances or changed circumstances that led to the delay in filing.

Back to the five reasons for persecution, let’s discuss “membership in a particular social group” (referred to as “PSG”).  This doesn’t mean that an applicant needed to be a member of an official club, or society, or organization.  It means that the applicant may state that he or she is persecuted because of some particular characteristics that he or she has.  For example, a woman who is fleeing domestic violence in her home, and who is from a country in which women have no real protections from the government against domestic violence, might be in a PSG of “women from Country X who are viewed as property due to their role in a domestic relationship.”

After the very long wait for an interview at at USCIS Asylum Office, and then at some point after the interview, USCIS will issue a decision on the application.  If USCIS approves the application, then the applicant is an “asylee,” and one year after the USCIS decision, the asylee may apply for permanent resident (green card) status.

If, at the time of the USCIS decision, the applicant is in lawful immigration status, then if USCIS does not approve the application, they will simply issue a denial.  The applicant will continue in their lawful immigration status.  On the other hand, if the applicant is not in lawful immigration status, then the applicant will need to appear later in Immigration Court, where an Immigration Judge will take a fresh look at the asylum application.

Asylum law is extremely complex.  If you are considering applying for asylum, you should work with an experienced immigration attorney.

A few thoughts about affirmative asylum, Part 1

I would like to share a few thoughts about the affirmative asylum process.  When I say “affirmative asylum,” I am referring to a person who decides to file for asylum while he or she is not in removal proceedings in Immigration Court.  So, the person “affirmatively” applies for asylum, rather than filing “defensively” in Immigration Court.

When a person files an affirmative asylum application, the application goes to USCIS, which stands for U.S. Citizenship and Immigration Services.  USCIS will receive the application, and, if the application meets certain requirements, such as being filled out correctly, containing the applicant’s signature, etc., then USCIS will send a receipt notice to the applicant, and to the attorney, if the applicant is filing with the help of an attorney.  The receipt will arrive in a small thin envelope, and it will be difficult to read the text on the receipt.

Next, the applicant will receive a biometrics notice.  This notice will be on regular letter-sized paper, and it will be easier to read.  The applicant will be directed to go to a USCIS office to get his or her fingerprints and photograph taken by USCIS.

After that, there is the very long wait for an asylum interview.  USCIS has 8 offices in the United States that are dedicated only for asylum interviews and decisions.  The 8 offices are, roughly from east to west:  New York, New York; Newark, New Jersey; Arlington, Virginia; Miami, Florida; Chicago, Illinois; Houston, Texas; San Francisco, California; and Los Angeles, California.

The applicant will be interviewed at the Asylum Office that has jurisdiction over the location where the applicant is living.  The waiting time for an interview varies by the office, but at this time, the waiting time for an interview varies from about 1 1/2 years (New York office) to more than 5 years (Los Angeles office).  At the Chicago office, the current wait for an interview is nearly 3 years.

Five months after the applicant submits the original asylum application to USCIS, the applicant may submit an application for an Employment Authorization Document (EAD).  By federal regulation, USCIS is supposed to issue the EAD within about 30 days of the application, but in reality, USCIS often takes about 90 days to issue the EAD.

Once the applicant receives an EAD, the applicant may file for a Social Security Number at the nearest Social Security Office.  The applicant may also apply for a driver license or state-issued ID, depending on the regulations in the applicant’s state.  The EAD will be valid for 1 year.  The applicant may renew the EAD each year, while the asylum application remains pending.

After the applicant has the asylum interview, then begins the wait to receive the decision from the Asylum Office.  The wait time for the decision after the interview varies quite a lot, but some wait times of 2 years or more are common.  Again, while the case is pending, the applicant may continue to renew the EAD.

In a later post, I will discuss more about the details of the asylum application process.