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