Asylum Liaison Meeting Questions and Answers

Paulette Sherry and Kathy Galvin

July 20, 2007

1.Does the San Francisco asylum office have any new procedures or recommendations to share with AILA members?

A new procedure is being implemented in regards to the material support waiver. All cases with material support issues are being sent to headquarters. The Asylum Office is completing a waiver form for eligible cases; Headquarters staff is completing the waiver if the file is already with them. There is no new form for applicants to fill out. A material support working group at HQ is coming up with guidelines.

2.When will the SF asylum office begin scheduling NACARA interviews in Seattle? A member reports that two of her cases which were scheduled for last year, and then cancelled, have yet to be rescheduled.

We are currently scheduling NACARA cases for interviews. One officer is being sent one week per month or every two months to conduct NACARA interviews.

3.The asylum office continues to routinely make attorneys and applicants wait two, three or more hours past their scheduled interview times before they are even called in for an interview. Most of the time, the asylum officers do not inform the attorney and the clients of the delay, so there is no idea if the delay will be one hour or three hours. In some cases, after waiting two or three hours past the scheduled appointment time, asylum interviews have been abruptly cancelled, even for clients and attorneys who have traveled across the state. Therefore, for clients and attorneys, an asylum or NACARA interview is usually about a four hour experience, most of it waiting to be called into the interview. This issue has been raised before, and the asylum office indicated that it would not double or triple schedule cases where attorneys had made an appearance. However, double and triple booking continues, greatly inconveniencing attorneys and clients. This situation is becoming intolerable, and something needs to change.

Calton Yue is working on this issue. At the present time, double bookings are only made for the 8AM appointment and the 1PM appointment. The check-in system in Tukwila means that officers know when applicants have arrived. Officers do their best to let applicants know how long they will have to wait, and do their best not to reschedule applicants who have traveled a distance to attend their interview.

  1. Are asylum applicants from El Salvador being informed of TPS eligibility? Will the asylum office continue asylum interviews for persons who apply for (and are granted) TPS?

NACARA trained officers may advise re: TPS, however it is not within their duty to do so. Even if an applicant is granted TPS, we conduct the asylum interview. In that case, we would treat the case as a case for a person who is in status. Our office will administratively close the case, if such is requested.

  1. Liaison committee members report a number of Salvadoran and Guatemalan NACARA and asylum applicants being referred to proceedings on the persecutor bar simply for having been in the army or guerilla, despite their testimony that they did not engage in persecution. FOIAs indicate that there is no specific evidence in the immigration file as to being a persecutor. This would appear to be in violation of 9th Circuit case law on the persecutor bar, as it applies the burden of proof. Miranda Alvarado v. Gonzales, 449 F.3d 915, 925-26 (9th Cir. 2006). Could the asylum office clarify how it is applying the persecutor bar?

The persecutor bar applies differently to NACARA cases and asylum cases. Due to the “clear eligibility” requirement for NACARA cases, we will deny an applicant as “not clearly eligible” for NACARA if a person has been in a bad unit, bad time, bad place even if the applicant testifies to not being involved in human rights violations. Officers are trained to elicit many details from the applicant. For asylum, we apply Ninth Circuit case law, which has a different standard. An expert declaration – for example, that a person could have been in a certain unit and not have violated human rights – would be very helpful.

  1. Often important supplemental information for an asylum interview comes to light shortly before the interview. When the asylum office was located in downtown Seattle, attorneys could drop by or mail supplemental information a few days before the interview. How can attorneys present such last-minute submissions prior to their interviews now that the asylum office is in Tukwila? How long does it take for a document sent to Tukwila to get to the individual asylum officer?

Member comments on his experience that evidence sent to Tukwila a few days before the interview made it to the officer in time for review. Package was addressed as follows:

URGENT: Asylum officer, day of interview

USCIS Seattle District Office

We urge AILA members to send mail to the San Francisco Office and we will fax the documents to the Asylum Officer on detail to Tukwila.

  1. If a recommended asylum application has been pending six months to a year or more at HQ, what efforts, if any do SF asylum staff make to find out the status of the case at HQ? In other words, does SF make any affirmative effort to get the case moving? If not, who can we contact at HQ to determine the status of the case? In the situation where a case has been pending for a year after SF recommends approval, the applicant thereby loses a year in which adjustment could have been applied for if the case was completely approved.

Many long-pending cases are long-pending due to name-check delays. Don’t assume your case is at HQ just because it has been pending for a year or more. For now, all persecutor bar cases are on hold at HQ. If you have a compelling reason for an expedited name check, please let us know.

You should contact Emilia Bardini or Calton Yue for information about a case at headquarters.

  1. What are the criteria used to send cases to HQ? Once they get there, what is HQ supposed to be doing with these cases? Why is their involvement needed?

The following cases are always sent to HQ: Mexican and Canadian cases, minors, novel issues, persecutor bar issues and cases where gender as a social group is the sole ground for asylum.

  1. AILA members report that email inquiries are not being responded to at all or in a timely manner (sometimes weeks or months later, if at all.) How can we best communicate with your office to seek resolution of cases and issues? The email method does not seem to be working anymore.

Certain inquiries, such as reschedule requests, or scheduling requests, we do not respond to, even though we are acting on the request. For other matters, we attempt to find out information and then respond to you. Email is always the best method of inquiry. If you do not receive a response, please title your second email “2nd Request for Information.” This should alert us to our oversight. Please note that we try to respond by letter but when the requests are made too close to the interview date, there is not enough time to respond by letter.

You should contact Emilia M. Bardini and Calton Yue.

Additional Questions:

1.Are asylum applicants eligible for a refugee travel document?

Applicants are not eligible for a refugee travel document. They may be eligible for an advance parole document, depending on local district policy.

2.Why are applicants not given an opportunity to respond to alleged derogatory information about the persecutor issue? It seems that if an officer has evidence that someone served in a branch of the military or police where egregious violations occurred, he of she presumes that applicant is a persecutor. Applicants are not given an opportunity to respond to the alleged information.

It may be that if the issue does not become apparent until the interview, the officer needs to research the issue later. Our advice to practitioners is to offer affirmative evidence that the applicant is not subject to the persecutor bar (for example, an expert declaration) when an applicant has been in the military, guerrilla, or civil defense.

A database that our office uses, among other sources, is the El Rescate database, which documents human rights abuses by the military.

Thank you for taking the time to answer our questions and liaise with Washington AILA.