Asylum and Immigration Court Basics

AILA Chapter Meeting

November 3, 2014

"Asylum and Immigration Court Basics"

Speakers:

David Scott Velez, Supervisory Asylum Officer, New York Asylum Office

Gerard J. Mekjian, Supervisory Asylum Officer, Newark Asylum Office

Elizabeth Barna, Esq.

Theodore Davis, Esq.

Hedwin Salmen-Navarro, Esq.

Asylum Basics and Update from New York Asylum Office
New York Asylum Office Facts and Procedures
USCIS agency charged with dispensing immigration benefits adjudicated by asylum officers in interviews and reviewed by Supervising Asylum Officers
56 officers, 10 supervisors, 2 quality assurance trainers, 5 fraud detection and national security members, management program analysts, and various other staff
Receive 300 applications per week, largest countries represented at the New York Asylum Office: China, Egypt, Nepal, Pakistan, Bangladesh, and Central American countries
Affirmative Asylum Process
Filing I-589 to Service Center- read the instructions (very particular form and will have a good idea what the officer is looking for)
Receipt of notices
Acknowledgement of receipt of asylum application. Issued by the Service Center.
If no receipt, then there is a filing deficiency (i.e. no G-28, application never received, or other problem)
Interview Appointment slip: scheduled for interview 42 days after the date of filing. However, due to New York back log, less likely to occur that fast.
Fingerprint appointment notice
Interview: asylum office opens at 7:30 am, attorneys need id and copy of G-28, client and derivatives must attend appointment and provide photo id. Go through security, sign in at the waiting room, submit any additional information and original documents, client will be given a number to protect his or her identity, client will be entered into USVISIT system, no cell phone/laptop/food or water permitted, there is a children’s corner and café, if you need to leave the floor you will be given a pager.
Asylum interview
Cases are randomly assigned to officers the day of the appointment meaning the officer must review all evidence and country conditions before starting the interview
These interviews are non-adversarial in nature
Dependents must remain in the waiting room due to limited space (exception can be placed for minors who can sit outside the office)
Will begin interview by introducing of the officer, provide the guidelines for the interview and case, will be a third party monitor for the interpreter your bring, all are sworn under oath, ask if any other information you want to provide
Interview itself: will ask applicant questions to see if qualified for asylum
Conclusion of interview: closing statement, ask follow up questions, and provide theory of case
Decision: typically prepared for applicant to pick up in two weeks. If not, will be mailed to client (i.e. cases where secondary review required by HQ).
New York Asylum Office Practice Tips:
Bring all original documents (ensure all valid)
Make evidence user friendly (hole punch top, tab bottom)
Don’t over submit country conditions, make sure they are on point, highlight voluminous materials
New documents submit to front desk as soon as possible
All documents in a foreign language must be accompanied by a certified translation certificate and English translation
Attorney’s role at the asylum office
Officer will establish ground rules, attorneys should wait until the end to ask questions, make comments, and explain the theory of the case
Don’t recite basic immigration law to officers
Be concise: asylum officers hear 2 to 3 cases per day. A lot of time pressure.
If there is a problem, bring up right away to Supervisor. Otherwise, in writing to the Director of the Asylum Office as soon as possible.
Asylum Office can accommodate special requests with a minimum of 3 days’ notice: (i.e. sign language interpreter, pre-assignment of case based on gender, ability to allow for multiple attorneys or petitioners)
New York Upsurge in Minor Cases
TVPRA questions need to be asked to child and trust guardian to make UAC determination
If child’s parents are outside the United States, need an affidavit from the parents consenting to their child filing for asylum
Late for interview
If more than 30 minutes late, applicant won’t be interviewed that day but rather rescheduled
Request to reschedule: first request automatically granted, subsequent requests only based upon good cause
Remember impact of rescheduling on asylum clock and EAD issuance
Backlog
10,000 plus cases in backlog, currently receiving more new cases per week then they have officer to interview so the backlog won’t go away without additional staffing.
Important contact people
EAD Questions: Marco Heinz
Minor questions: Molly Issacson
Trafficking questions: Jodi Tyrell
Credible fear: Portia Vesquez
Reasonable fear: Matthew Vasquez
CF/RF Determinations
Increased number of immigrants from the Rio Grande
Newark Asylum office includes cases from Manhattan, Bronx, Pennsylvania, and upstate New York and detention centers where the foreign national was detained at the border)
Asylum pre-screening program
Between 2011 to 2012: 600 to 700 cases
2014: 200 to 300 per week
Order of Priority: Credible fear, reasonable fear, unaccompanied minor, non-detained, and affirmative applicants
Credible fear
If individual enters at a border, apprehend within 100 miles of the border and within 14 days of entry, considered to be present without admission (PWA).
Also possible if you are an arriving alien.
Due to overcrowding at southern border detention facilities, PWAs will be transported to other detention facilities.
Once asylum office gets notice, must schedule an individual for a credible fear interview within 8 days.
Anyone can attend the telephonic credible fear interview. However, to receive written decision, attorney must file a G-28. Determination is made the same day.
Credible fear is a threshold screening, low burden because applicant is detained and unable to access evidence. Basis is “significant possibility of harm”.
Will have an opportunity to present the nexus for an asylum case
If no nexus for asylum, will look out for CAT claim
Jurisdiction moves around. Begins with ICRO then Asylum office then to EOIR. If the individual passes the credible fear interview, individual is issued a Notice to Appear before the Immigration Judge where the record and supplemental evidence is reviewed de novo. If failed credible fear interview, applicant is referred where judge can either review the decision or commence deportation proceedings.
Important to verify how long individual has been in the U.S. (often in stash house or trafficked).
85% of females trafficked from the southern border experienced sexual violence
Reasonable fear (Reinstatement of prior order of removal)
Higher burden and will take into consideration supplemental evidence
Standard “reasonable possibility of harm upon return”
Regulations state interview must take place within 10 days. In actuality, closer to 30 to 90 days (just before eligible for custody review).
More access to attorneys than credible fear. Attorneys can be helpful where there is a special, novel social group
If positive result, receive Withholding or Deferral of Removal
If negative result, can have Immigration Judge review decision or accept decision and deportation proceedings will commence
Northern border entrants have unique issues of safe 3rd country agreement to vet
Very helpful in these cases if attorney identify themselves by submitting a G-28 to the asylum office
If there is an issue of mental competency, let asylum office now
If negative decision by asylum office and Immigration Judge still have option to ask asylum office to use discretion because there is new evidence which would change the case to reopen and interview again.
Remember there is a small window of opportunity, typically a matter of hours
Hot Topics and Recent Case Law on Asylum
Board of Immigration Appeals Decision
Domestic Violence
Matter of ARCG (August 2014): married women from Guatemala who are unable to leave their relationship is a recognized social group.
Matter of RA (199) then 2099 DHS stipulated only that particular woman deserved asylum
Termination of Asylum
Matter of PSH: DHS must establish by a preponderance of the evidence that there is fraud, fraud makes alien ineligible at the time the asylum was granted, and alien doesn’t need to have knowledge of the fraud
Right to full hearing
Matter of EFHL: Yes, entitled to full hearing. No need to establish prima facie eligibility for relief
Social Visibility Issues
Matter of MEVG: social distinction correct term. Doesn’t mean literally visible social group. Must be a member of a group which shares a common immutable characteristic and social distinct within the society in question.
Perception is based upon society, not the persecutor
Matter of WGR: risk of persecution on part of membership group (former MARA 18 gang members were not a social group)
Change country conditions
Matter of Je: no need to rescind removal order before filing Motion to Reopen on change country conditions, numerical limitations on filing do not apply
Is a grant of asylum admission?
Matter of VX, 26 I & N 147: a grant of asylum is not considered an admission.
Dual nationals/citizens
Matter of BR: nationals or citizens of more than one country and not fearful in one country is not eligible for asylum
Aggravated felonies/serious crimes
Matter of MH: an offense does not need to be an aggravated felony to be considered a serious crime for purposes of asylum or withholding of removal (should be applied to cases in the 3rd Circuit)
Internal relocation
Matter of MDMR: Judge needs to determine whether individual can relocate to another part of the country and reasonably do so (area of the country where circumstances are substantially better than there giving rise to a fear of persecution), judge needs to balance factors listed in the Code of Fed Regs 1208.13(b)(3)
Political crimes
Serious non-political crime balance seriousness of the criminal act versus political aspect of the conduct
EOIR Committee meeting
25 full time new Judges will be in placed by January 2015
All information has been restored after the computer failure
FOIA process time: 21 days
To avoid being frozen in E-verify due to inactivity need to log in at least once a year
By start of the year will improve system to make changes of address easier
Difference between the expedited and regular docket: first hearing must be scheduled within 21 days (28 days for families with children) then scheduled like normal
Cancellation of removal for Non lawful permanent residents: post trial evidence must be submitted following normal motion practice set forth in the court manual
Age out of only qualifying relative: known and predictable event unlike death. Court will take under consideration amending OPPM to allow judges to prioritize these cases
Mentally incompetent Respondent: 241 cases in Phase 1 of plan
EOIR pre-trial pilot program: 5 venues (Arlington, El Paso, Denver, and Omaha) where OPAL and private counsel meet and come to stipulation to save hearing time.
Positives: save time and more stipulations
Negative: more time needed for court personnel to organize documents
Credible fear procedures: according to CFR & INA specific documents must be referred to Immigration Judges which are not currently being done. Under consideration by the Court
Physical restraints and civilian clothing for detainees: unfairly prejudiced during bond hearings. In San Francisco agreed to remove restraints and allow civil clothing for bond hearings. EOIR states they have no control over the restraints and can’t comment on San Francisco.
Matter of Fidencio Pina- Galindo: ineligible for Cancellation of Removal if falls within the scope of INA 212(a)(2)(b) convicted of two or more offenses within the aggregated sentence imposed are 5 years or more
Matter of Ferreira: statute on its face covers a control substance not included in the Federal Control Substance Schedules there must be a realistic probability that the stat would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach
Matter of Dominguez-Rodriguez: for purposes of 237(a)(2)(b)(i) the phase a single offense involving possession for one’s own use of 30 grams or less of marijuana calls for a circumstance specific inquiry into the character of the alien’s unlawful conduct on a single occasion not a categorical inquiry into the elements of a statutory crime
Matter of Paek: an alien admitted into the United States at a port of entry as a conditional permanent resident pursuant to 216(a) of the Act is an alien lawfully admitted for permanent residence who is barred from establishing eligibility for a waiver of inadmissibility if subsequently convicted of an aggravated felony
Matter of CCI: reopening of removal proceedings for new hearing to consider termination of an alien’s deferral of removal is warranted where the government presents evidence not considered at the previous hearing if relevant to the possibility that the alien will be tortured in his country
The Doctrine of Collateral Estoppel does not prevent an Immigration Judge from re-evaluating credibility in light of evidence presented at this hearing
Preparing for Immigration Court Hearings
Master Hearing
Respond to Notice of Appear: either admit or deny Immigration Judge’s questions
You are not a USC: admit
You are a national of country X: verify with client first but admit
If EWI and they state entered unknown place and unknown time, if you have proof less than 1 year state on record correct date to preserve your client’s claim to asylum
Remained in the U.S. beyond authorization: admit
Be prepared to answer what language your client speaks
Make sure the hearing notice is correct
Will need to submit an EOIR 28 with your EOIR number
Do not bring small children to court
Be prepared to explain the relief being sought
Asylum: road to lawful permanent residence in one year, can sponsor spouse and children using I-730, and obtain a travel document. Need to file for asylum within 1 year or show exceptional circumstances.
Withholding of Removal: higher burden then asylum need to find past persecution often where asylum application filed after one year from the time of entry. No lawful permanent residence for WOR, can’t sponsor spouse or children, or obtain travel document. Make sure client understands on the record the difference between asylum and WOR.
Convention against Torture: rare but a client who was a torturer, criminal, prison guard is barred from asylum and WOR. Can’t be returned to a country where he or she will be tortured.
Ask for no more than 2 hours for your individual hearing
Confirm hearing date and call up date (for evidence and witness list), each judge is different
File original documents during the master calendar hearing
If you are the new attorney of record, provide newly signed asylum application
Keep biometrics current (only valid for 15 months)
Preparations for individual hearing
2 to 3 weeks after master calendar hearing, meet with clients to prepare a To Do List of evidence they should be gathering in support of their asylum claim.
If 1 year issue, look for evidence to establish been in U.S. less than one year (entrance stamps to other countries)
If filing after 1 year, any special circumstances (i.e. bad child birth but filed 3 to 6 months after recovering)
File supporting evidence yourself in person and get stamp for your copy to prove you filed
30 days before the individual hearing, call trial counsel to ensure they have all necessary documents
Ask the clerk for permission to see the Judge’s copy of the file
FOIA request if not client’s previous attorney (maybe other names, marriages) file DOJ 361 in 3 to 4 weeks get a disk with a copy of the court file
EOIR Practice Manual is very helpful, gives advice on motions (telephonic witness, untimely filed documents, change of venue)
Bring IRS Transcripts (request online using form 4506T or at local IRS office) to individual hearing important to demonstrate good moral character
To confirming hearing date and days on your client’s asylum clock, call EOIR 800# which is 800-898-7180
To find out Immigration Judge’s denial record google Immigration Judge Trac Report
Speak to trial counsel a week or two before your case (i.e. if good 42B case may want to see if due to changed circumstances they will reconsider asylum case will save your client years waiting for a green card to become available under cancellation of removal)
Judge and trial counsel calendar is issued about two weeks in advance
Important to get testimony on transcript

Prosecutorial Discretion with ICE
Prosecutorial Discretion is a formal request to Immigration Customs and Enforcement (ICE) to not prosecute a foreign national in the following four ways:
Lodge an immigration detainer on a foreign national who committed a crime or charged with a crime
Department of Corrections or New York Police Department will notify Immigration Customs Enforcement of charge or conviction. ICE can place hold on individual.
If in New York City, call 201 Varick Street or ice.gov/locator to speak to client’s Deportation officer
Ask Deportation Officer to exercise prosecutorial discretion and not lodge detainer against foreign national
Rarely will they not issue a detainer, may reconsider detainer in the future
New York City Council just passed a bill where Department of Corrections or New York Police Department will not need to honor an Immigration Customs Enforcement detainer where the foreign national has not been convicted.
Deferred action
Asking EOIR to defer action of executing the outstanding removal order and instead to use discretion to not execute the order.
Factors include: length of time spent in U.S. (how much was in lawful status?), pursuit of education in the U.S., manner of entry, criminal history, served in the military, whether committed fraud, is a national security risk, spouse pregnant or in bad health. Primarily humanitarian considerations.
Formal, lengthy request filed with EOIR, last shot for foreign national
ICE