Biden v. Trump: Part 2. Differences on Asylum Policy.

Biden v. Trump: Differences on Asylum Policy.

By Christopher Kerosky 

Perhaps the starkest difference between Trump and Obama/Biden has been with respect to asylum policy.  

Trump has implemented a broad-based set of restrictive laws and policies toward asylum applicants including:

•       blocking many individuals from eligibility for asylum by changing policies to exclude victims of 

sexual abuse, domestic violence or gang violence abroad;

•       forcing asylum applicants to wait long periods in Customs & Border Protection camps at the U.S. border 

or in Mexico; during the last six months, the Administration has simply closed the border to asylum 

applicants completely, citing the COVID crisis.

•       Using the Department of Justice to restructure the immigration law bench by appointing predominantly 

former ICE officials as judges, and expediting deportation proceedings for asylum applicants.   

If he becomes President, Biden has promised to reverse much of this, including a promise to 

“support steps to make immigration courts 

more independent.” https://joebiden.com/wp-content/uploads/2020/08/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf

IMMIGRATION COURT POSTPONES ALL NON-CUSTODY HEARINGS UNTIL JUNE 26, 2020.

IMMIGRATION COURT POSTPONES ALL NON-CUSTODY HEARINGS UNTIL JUNE 26, 2020.  

it was just announced that Hearings in non-detained cases at other immigration courts are postponed through, and including, Friday, June 26, 2020.

Individuals with hearing dates before that date will receive notice of rescheduling of their hearings.

COVID-19 UPDATE: ASYLUM OFFICE TO REMAIN CLOSED UNTIL MAY 4, 2020

COVID-19 UPDATE: ASYLUM OFFICE TO REMAIN CLOSED UNTIL MAY 4, 2020 

The San Francisco Asylum Office will remain closed until May 4th, unless there is a need to extend it longer. All asylum interviews scheduled during that period will be cancelled and applicants and their representatives should be receiving cancellation notices in a week or so.

During this ongoing public closure, the San Francisco Asylum Office will have staff responding to phone and email inquiries. Representatives with case-specific questions or concerns should feel free to inquire directly with the asylum office.

The new San Francisco Asylum Office phone lines are: (415) 865-3586 and (415) 865-3587. For phone inquiries, leave a voicemail with your name, client's A#, and callback phone number.

JUDGE SAYS U.S. CANNOT JAIL ASYLUM SEEKERS INDEFINITELY

JUDGE SAYS U.S. CANNOT JAIL ASYLUM SEEKERS INDEFINITELY.  Today, a federal judge in Seattle blocked the Trump administration from denying bond hearings to asylum seekers.

US District Judge Marsha Pechman ruled that people who are detained after seeking asylum protection are entitled to bond hearings and the chance to be released from custody. "It is the finding of this Court that it is unconstitutional to deny these class members a bond hearing while they await a final determination of their asylum request," Pechman wrote.

The Justice Department announced a policy in April that some asylum seekers cannot be released on bond by immigration judge—even if they have already proven a credible fear of persecution in their home countries.  The policy would have effectively blocked immigration lawyers and immigrant rights advocates from asking judges to release detained asylum seekers on payment of a bond.

The judge ordered the Justice Department to resume bond hearings for asylum seekers within two weeks. 

UNDERSTANDING THE CHANGES DONALD TRUMP JUST PROPOSED TO ASYLUM PROCEDURE

UNDERSTANDING THE CHANGES DONALD TRUMP JUST PROPOSED TO ASYLUM PROCEDURE.  

The Trump Administration just announced its plan for new regulations to further restrict the rights of asylum seekers arriving at the U.S.-Mexico border.  These newly announced plans would further limit the legal rights of asylum seekers, accelerate their deportation procedures making it difficult for them to defend against deportation, limit their right to work while their cases go forward and charge them a fee for applying for asylum. 

Here’s a brief summary of what those new proposed changes would do: https://www.linkedin.com/pulse/understanding-changes-donald-trump-just-proposed-asylum-kerosky

(To read about what steps the Administration has taken previously to limit asylum and restrict legal immigration, and California’s efforts to fight these proposals, see: https://www.sonomacountygazette.com/sonoma-county-news/immigration-stories-by-christopher-kerosky-may-2019)

All of these changes would significantly change the asylum procedures set up 40 years ago by Congress when they passed the Refugee Act of 1980 setting up the asylum system.   

1. Limiting Options in Deportation Proceedings

Asylum seekers at the border already have to pass detailed interviews to convince a federal officer that they have a “credible fear” of persecution in their home country based on race, religion, political opinion, or social group.  Now. Trump proposes putting them into special deportation court proceedings, which would limit their options for rights to request other relief-- for example, denying them a right to stay based on marriage to a U.S. citizen.

2. Accelerating Deportation Proceedings

Trump also proposes that all asylum cases to be heard within a six-month period except in “exceptional circumstances.” The problem is that this would make it harder for asylum seekers to get a lawyer, obtain all the documents from their home country to prove their case and prepare for their deportation hearing properly. 

3. Charging a Fee to Apply for Asylum

Applying for protection has been free since ever since the Refugee Act of 1980 created the procedures almost 40 years ago. Under Trump’s new plan, asylum seekers would have to pay a fee to apply.  For people fleeing their country with little or nothing, this would cause more people to abandon their asylum claims.

4. Banning Work Authorization

Under the current rules, asylum applicants can obtain the right to work legally while they wait for a final decision on their application.  Under the new rules, most recent asylum seekers would be banned from getting work authorization. This would deny them the right to legally work while going through the asylum process. Clearly this would make it more difficult for them to survive in the U.S. while they try to prove they would be persecuted if they go back to their home country.

RESTRICTIONS ON ASYLUM BLOCKED.  A San Francisco judge issued a temporary restraining order last night, preventing the Trump Administration from implementing its new limitations on asylum.  Those regulations sought to deny access to asylum to many refugees at our Southern border.  Judge Michael Tigar of the U.S. District Court held that the law appears to violate the U.S. Refugee Act of 1980, as well as other provisions of law.

The United States Refugee Act (Public Law 96-212) was passed by Congress in 1980 to provide an established procedure for the admission to the United States of refugees of special humanitarian concern to the U.S.   That statute guarantees individuals the right to seek asylum whether at the U.S. border, a port of entry or even from the interior of the country. https://www.thoughtco.com/united-states-refugee-act-1980-1952018

Many of the refugees arriving as part of the caravans seek to apply for asylum at the U.S. border port of entry.   As reported in the Washington Post, some of those and others have gone to the wrong port of entry or crossed the border in desperation when they were turned away at a port of entry.  The U.S. Customs and Border Patrol has limited access to ports of entry and closed lanes of access routinely, greatly restricting the numbers of asylum seekers who may apply through the port of entry.   

The Trump Administration was attempting to limit access to asylum to only those persons applying at the port of entry.  Those who crossed the border at other points would be ineligible.   But the judge held that this limitation runs contrary to the express terms of the 1980 law.

 “If what Defendants intend to say is that the President by proclamation can override Congress’s clearly expressed legislative intent, simply because a statute conflicts with the President’s policy goals, the Court rejects that argument also,” the judge found

“This ban is illegal, will put people’s lives in danger, and raises the alarm about President Trump’s disregard for separation of powers, “ stated the ACLU lawyer who brought the case.   “There is no justifiable reason to flatly deny people the right to apply for asylum, and we cannot send them back to danger based on the manner of their entry. Congress has been clear on this point for decades.” https://www.washingtonpost.com/nation/2018/11/20/blow-trumps-immigration-agenda-federal-judge-blocks-asylum-ban-migrants-who-enter-illegally-mexico/?utm_term=.10c4a89558a2

SEEKING ASYLUM: Part Two: Applying for Asylum in Court.

By Christopher Kerosky

[This article was published in La Voz Bilingual Newspaper, http://www.lavoz.us.com/Read_La_Voz.html]

This is the second installment in a series about the asylum process for the many citizens of Mexico and Central America coming to our U.S. border to seek refuge from violence and persecution.  That first step, covered last month, is the interview conducted by an asylum officer at the border.  This article will describe the second step – the immigration court process. 

In order to stay in the United States (and eventually permanent residency), asylum seekers must prove to an Immigration Judge that they have a “well founded fear” that they will be persecuted if they were forced to return to their countries of origin. 

The applicant needs to demonstrate that he or she has a fear of future persecution on account of race, religion, nationality, political opinion or membership to a particular social group. 

To obtain such protection from U.S. authorities, the asylum applicant should prepare an application known as I-589, and file it before an Immigration Judge.  The application should include declarations from the applicant and other witnesses and other detailed information as to why the applicant fears returning to his home country.  All of the information should be true; otherwise, the immigrant can be accused of presenting a “frivolous” application, which carries serious penalties.

The chances of obtaining asylum are greater if the application is filed within one year (365 days) from the applicant's entry into the United States. If this is not possible, then the applicant needs to demonstrate that the delay in the filing was due to extraordinary circumstances or that that the application was filed within a reasonable time after a change of circumstances that make the applicant eligible for asylum.

The asylum process could take approximately from six months to six years, depending on the judge's calendar and the backlog in the courts generally.  I have been representing clients in asylum proceedings since 1988 and over the years, I’ve handled more than 1000 asylum cases.  Over that time, the length of time asylum applicants wait for a hearing has steadily increased, recently averaging about 5 years.  However, the Trump Administration is attempting to increase the number of judges and expedite the process, especially for new applicants.

At the end of the immigration court case, a trial is held before a judge where the applicant is able to give testimony and present evidence favorable to his or her case. After the asylum applicant presents their case, the government's attorney is given the opportunity to convince the judge that the applicant is not eligible for asylum in the United States. Normally, the judge renders a decision at the end of such hearing.

If the judge denies the request for asylum, the applicant may appeal the decision with the Board of Immigration Appeals (BIA) and thereafter before the federal Court of Appeals.  During the time the appeals are pending, the applicant can remain in the U.S. legally.

If the judge decides to grant the individual asylum, he or she can remain in the United States indefinitely. One year after being granted asylum, the applicant and their qualified relatives can apply for Permanent Residency.

The asylum process is often long, complicated and stressful.  Despite some common misconceptions to the contrary, it is generally very difficult for asylum seekers to stay in this country.  However, if they present their case well, asylum seekers can often succeed in convincing a judge that they deserve refuge from the growing violence and persecution in Mexico and Central America.

TRUMP’S NEW EXECUTIVE ORDER issued yesterday denying access to asylum to many refugees at our Southern border will surely be challenged in Court.  The law appears to violate the U.S. Refugee Act of 1980, which guarantees individuals the right to seek asylum whether at the U.S. border, a port of entry or even from the interior of the country. https://en.wikipedia.org/wiki/Refugee_Act

Also, Donald Trump has justified his new Order on many “alternative facts” about these asylum seekers.  Here’s a couple examples contradicted by his own Justice Department:

Donald Trump claimed last week that only 3% of asylum seekers show up for court.  The false myth is that asylum seekers disappear once they arrive and don’t appear for their Court hearings.  But the U.S. Department of Justice (which operates the immigration courts) reports that the overwhelming majority of individuals requesting asylum appear in court, including 89% of those who file an application for asylum. See their statistics at: https://www.justice.gov/eoir/page/file/1107056/download

We work on a daily basis with asylum seekers from Central America and Mexico and I can tell you that most are fleeing terror at the hands of cartels, gangs and other criminal elements in their country. They wish to tell their story and the small fraction that don’t appear for their hearings generally don’t understand the process or don’t have a lawyer or are just simply afraid of deportation. 

Another myth is that only a small number win their asylum cases.  To prevail in court, they must convince a judge that they have a well-founded fear of persecution based on race, religion, nationality, political opinion or social group.  Nonetheless, in 2017, 40% of asylum applicants succeeded in doing so and obtaining asylum from an immigration court.

To read more:

https://kpblawfirm.blogspot.com/2018/06/the-truthabout-immigrant-families-at.html

https://kpblawfirm.blogspot.com/2018/10/seeking-asylum-part-1-credible-fear.html

SEEKING ASYLUM: PART 1

The Credible Fear Process at the U.S. Border.

By Christopher Kerosky

The asylum process has received increased attention lately with the Trump Administration’s decision to separate parents from their children at the border.  But now that Donald Trump has reversed his policy, once again the spotlight has moved away from the many refugees at our border seeking asylum.

Meanwhile, this humanitarian tragedy continues.  A large number of those pursuing asylum eventually come to California and the North Bay specifically.  Beginning in the first days at the border, the Department of Homeland Security starts a lengthy process to consider any arguments and evidence the asylum applicant might have to support their claim of asylum.

I felt it would be useful to describe the process for those in the public who are interested and to provide some guidance to persons going through it.  This segment covers the first step of the process, known as the “Credible Fear Interview” (CFI).

Credible Fear Process.

A person detained at the border without proper documents to enter generally does not  have the right to stay in the United States or file an application for immigration benefits. The only exception is if that individual has “a well-founded fear of persecution based on race, religion, nationality, political opinion or social group”.   The person also needs to prove that the persecution was by the government or that the government could not stop it.

If a person at the border declares they are afraid to return, ICE will ask them some preliminary questions to determine if they are afraid and then the US asylum office will conduct a formal interview to determine if they  have "credible fear" of returning. to their country.

The purpose of the credible fear interview is to determine if there is a significant possibility that the immigrant could be eligible for asylum. During the credible fear interview, the officer will ask the asylum applicant many questions about their fear, who they are afraid of and why. 

The interview is typically conducted by the an asylum officer, often by video. A lawyer can be participate, typically by telephone.   

If the the asylum officer finds that there is not a sufficient credible fear of harm based on one of the five statutory grounds, the applicant can ask for the opportunity to appeal the ruling before an immigration court.  However, the asylum seeker will remain in custody while he or she goes through further appeals of the denial of asylum.  Typically future courts affirm the denial of credible fear and the person is ultimately deported. 

Even if the applicant is successful and convinces the asylum officer that he or she has a credible fear of persecution during the CFI interview, they are still placed in deportation proceedings before an immigration court, where they must convince a judge that their “credible fear” rises to the level of a “well-founded fear”, a higher standard of proof.  If they fail to do so, they are also deported. 

Part Two of this series will cover the asylum process before an immigration judge.

THE TRUTH  ABOUT THE IMMIGRANT FAMILIES AT THE BORDER

By Christopher Kerosky

There is so much misinformation about the asylum seekers coming to our Mexican border, including a plethora of “alternative facts” put forth by Donald Trump. 

Our office has represented many families who went through the same process like those incarcerated at the border now and so I will try to address here some of the most common fallacies and provide some accurate information.  It’s important that the public understand why this is happening and who is to blame for a policy of separating children from their parents in our name.   

Are these immigrants all coming in illegally?

No, a large portion of these refugees are entering the U.S. border legally, seeking asylum through a legal procedure established by the U.S, by statute in 1980, and in accordance with the UN Human Rights Treaty.  This is true of all of those coming in the caravans of desperate refugees from Central America, organized by humanitarian organizations.  Donald Trump has condemned these caravans, but the fact is these people are following our own laws that provide a procedure for refugees to seek asylum at our border.

According to the Washington Post, some of the others who have been separated from their children were also seeking asylum but were apprehended because they went to the wrong port of entry or crossed the border in desperation when they were turned away at a port of entry.   

The majority of those seeking asylum are from Mexico, Honduras and El Salvador, all countries ravaged by violence at the hands of criminal organizations.  Extortion, kidnappings and even murder are very common in many of the areas from which these refugees come.  Virtually all of the asylum seekers I’ve met reported that their families were targets of this violence and were threatened with more violence if they stayed in their communities.

Are these immigrants able to stay forever in the U.S. just by coming to the border?

No, all applicants for asylum have to go through a rigorous interview process to establish they have a credible fear of persecution in their home country before they are ever allowed to leave the custody of the border officials.

Those who fail these interviews are deported. 

Those who succeed in proving to a DHS official that they credible fear of persecution still have to go through a trial before an immigration judge in deportation proceedings.  There, they are subject to a higher standard of proof, requiring that they prove have a well-founded fear of persecution based on religion, race, nationality, political opinion or social group; if they fail to prove this to a judge, they are deported.

Are the Democrats responsible for this family separation policy?

Donald Trump continues to falsely blame Democrats for an administration policy that has led to more than 2,000 children being separated from their parents at the U.S. border.

The family separations began earlier this year after the Administration announced a so-called “zero tolerance” policy of referring all border crossings for federal criminal prosecution, which leads to children being separated as their parents are sent to jail.

A law intended to protect children from trafficking was  passed by a Democratic Congress and signed into law by George W. Bush in 2008.  It establishes certain due process rights for unaccompanied minors .  That is apparently the law Donald Trump is referring to; however that law does just the opposite. 

Isn’t there an alternative to incarcerating them and separating them from their children?

Yes, even if the U.S. government insists on criminally prosecuting all these immigrants, I believe these families could be given electronic ankle bracelets or other devices commonly used by immigration or law enforcement to ensure a person will attend future court hearings and not disappear. 

There has never been an adequate explanation from the Trump Administration why these refugees cannot be given electronic devices to track their whereabouts, instead of incarcerating them at greater cost to our government, not to mention the cost to their children who are taken away from them.