Category: Asylum

Can a writ of mandamus help in delayed asylum cases

 

Can a writ of mandamus lawsuit work for people who have delayed asylum cases? Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of office here in St. Louis, Missouri. You know one of our favorite things to do here at the Hacking Law Practice is to file lawsuits on behalf of immigrants who’ve been waiting too long for immigration benefits. Typically, we do that in the citizenship context, so probably over a hundred people have benefited from working with us to file lawsuits on their behalf against the USCIS. The way it works is you file a lawsuit, you ask a federal judge who doesn’t work for the immigration service, who’s appointed for life and who is not part of the executive branch, to compel the immigration service to decide a case.

We’ve had people who’ve been waiting for their citizenship for one, two, three, four, five, even nine years benefit from us filing a lawsuit. When you file a lawsuit, it generally requires the USCIS to take the case off the shelf. For some reason, they’ve taken people’s cases and put them up on the shelf, and the lawsuit makes them explain the source of the delay. When delays have gone on for a really, really long time, the agency usually does not want to fight. They just want to move the case forward. We oftentimes get positive movement on the cases, oftentimes scheduling an interview or scheduling an oath ceremony.
We’ve always known that it works in the citizenship context. We’ve also had success, which you can learn about on other videos, when it comes to green card delays. We even had success suing the State Department for delays in processing immigrant visas for the spouses of US citizens. The one thing we’ve never done before is file a mandamus action for someone who had been waiting for asylum. One of the reasons we were reluctant to do that is we weren’t entirely sure, given the fact that the immigration service and the asylum office has so much discretion in granting or denying asylum, we were reluctant to file a lawsuit on the asylum front. We weren’t sure if it was going to work.

About six months ago, we were hired by a very nice couple from Syria who happen to live in Michigan. They had filed for asylum in December of 2012. They had their interview just a few months later, which is unusual, but it does happen. Sometimes, randomly, certain asylum cases get assigned very quickly to an interview. Their interview happened literally six weeks after they filed. The interview was in January of 2013, and at the time that they hired us in October of 2016, they had been waiting for three and a half years for their decision. They had done everything they could do to try to get help. They had contacted the CIA ombudsman. They had contacted their senators and representatives in Michigan, and they had made numerous InfoPass appointments, and they just couldn’t get any movement.

One thing to keep in mind is this couple had hired the largest immigration law firm in the country. If I told you their name, you’d have heard of them. They have offices around the country and around the world. I think generally they specialize more in business immigration, and while they did take this asylum case, when I reviewed the paperwork that had been filed, I didn’t think they had done a very job. Specifically, what I complained about was the fact that the statement that was submitted in support of the asylum application was all over the map. It wasn’t very focused. It left a lot of things wide open and a lot of issues for inquiry by the asylum officer.

I talked to my client about how the initial interview had gone. He said that it had gone very well, that the officer had talked to them for about an hour, which is also unusual, and that the asylum case, he was told by the officer, would be approved in a couple of months. None of that made real sense. Nonetheless, we decided to file a lawsuit. We filed suit in Chicago, because that’s where our client’s asylum case was pending. We filed it in federal court. We served copies on the defendants, and pretty quickly, he got rescheduled for another interview. That was last January. I attended the interview with my clients. It was a long day. My client had a lot to say, and they had a lot of ground to cover. They were revisiting and reissuing focus on the case and the questions that had been answered back in 2013, and they wanted to make sure that my client had not supported any kind of groups that the United States was worried about in Syria.
When the interview was over, we thought that we had done a good job and that we would be getting a decision shortly.

It turns out that we had to wait a little bit longer. Now, the defendants had a certain amount of time to answer the lawsuit. Typically, it’s 60 days, but because they were working with us, we had given them some extensions and were coming up against a new deadline. I got a call from the US attorney who was defending the lawsuit to tell me that, lo and behold, the immigration service, the asylum office, wanted to interview our client one more time. Now, I took this as a good sign, because I figured if they wanted to deny the case, they wouldn’t call us back in for another interview, but that’s in fact what they did. This week, we went up to Chicago and had a third interview on the asylum case. It was relatively quick, but it was about an hour long.

One thing the attorney had told me when he called was that he was willing to promise that we would leave the asylum office that day with a decision. It was a very stressful day for my client and for me. We went through that hour-long third interview, and then they asked us to wait so they could talk to the supervisor. They had a few more questions after that, and then we had to wait a few hours while they issued their decision. We spent that time pacing back and forth in the asylum office. It was back like when I had trial work, and I was waiting on a jury. I really wasn’t sure which way it was going to go. The officer didn’t want to come out and see us herself. She had the lady at the front window give us the decision, so we’re sitting there waiting for the decision. It was very suspenseful. I was very worried.

The decision was sitting across from us. I couldn’t tell what it said. I was pretty sure that it was going to be a denial, but the agent happily told us that our client had been approved. His long four-and-a-half year wait for asylum had been granted, that he’d been granted a parole into the United States, and that he was going to be treated as an asylee, that a year from now, he can apply for a green card, and then five years after that, he can apply for citizenship. This happened on a day that there was a horrible gas attack in Syria, so it only led more importance and significance to the victory. We were very, very excited for our client and his wife and his two lovely US citizen daughters. They’re not going to have to go back to Syria or to leave the United States. It was quite a victory, and we’re really happy for our clients.

Lesson learned. If an asylum case has been pending for a really, really long time … It’s not going to work in every case, and I would say a delay of two or three or four years is sort of the minimum before we file a lawsuit, but to know that the immigration service, the asylum office, and the US attorneys will work with us on asylum cases is a very valuable lesson.

If you have experienced delay in any kind of immigration case, whether it’s citizenship, green cards, visas, anything, make sure to give us a call at the Hacking Law Practice, 314-961-8200. You can email us at info@hackinglawpractice.com. If you like this video, be sure to click the subscribe button below. Give us a like and a shout out on social media. We’d really appreciate it. It’s a big help. If you have questions that you want us to cover, just feel free to email us at info@hackinglawpractice.com, and we’ll try to shoot a video for you. Thanks a lot. Have a great day.

 

Here’s What To Do After You Get Your Asylum Interview Notice

What do I do after I receive my asylum interview notice?

Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. You know, a lot of the videos that I shoot, that we make, are based on current situations at our office, questions that come up either from clients or potential clients. We have a very interesting situation here in the office that just occurred. We have a fair number of asylum cases for clients from Iraq right now. Probably in our office, we’re handling about fifteen of these, and some of them have been pending for two years or more.

Last week, we got not one, not two but three asylum interview notices for the same day, and so we are working with each of our clients to prepare them for their interview and to gather the supplemental documents that we want to submit prior to the interview. It’s a very interesting time here. It’s very hectic so I’m going to shoot this video as quickly as I can. Basically, I wanted to talk to you about what we do to get ready for that final interview. The one thing that we do first and foremost is we meet with our client again. We go over the statement that we submitted, so whenever we file an I-589 asylum application, we always send in a long statement from our clients detailing why they fear persecution if they return back home.

The first thing we do is we review the statement with them and we go over it line by line with them, and we do that a couple of times to make sure that they’re comfortable, to refresh their recollection. As I mentioned, many of the time, these people had filed these two years or more ago. They probably haven’t really read up on it or paid attention to exactly what’s going on day to day in their home country so we want to prepare them for the interview because when they go to the interview, usually we don’t say that much as the attorneys involved. We really want our clients to stand on their own two feet, to be able to demonstrate and explain to the officer why they feel they need asylum and protection from persecution back home.

We spend a lot of time obviously preparing the clients for that interview. The other things we do is we start gathering supplemental evidence so again the evidence that we submitted two years ago might not be timely, and especially with countries like Iraq or where things are happening quickly and sides are changing and cities are falling, all these things are important to bring up, especially as we particularize them to our client’s case.

For instance, if we have a Sunni Muslim who doesn’t want to join ISIS, then we’re going to want to demonstrate what’s happening to Sunni Muslims who don’t join ISIS these days, so we want to make everything fresh and contemporary and updated, and we also want to go through and highlight all of that in the supplemental application memo so that the officer has an easy time going through the evidence and they understand why our client still feels they’re going to be persecuted if they return back home.

The two big things are to prepare for the interview by going over your statement, recollecting why you feel you’re going to be persecuted if you go back home, and the other one is to make sure that you’re submitting supplemental evidence, updated Human Rights Watch reports, State Department Country Conditions reports and any kind of news reports that apply to the situation in your home country. The tricky thing with asylum is that you wait and wait and wait for months and years and then when you get the notice, you basically have about two weeks to get your materials together and we like to submit them ahead of time, so they’re actually going out right now, as we speak, to the officer before they come to the interview.

If you have any questions about getting ready for your asylum interview or if you’re thinking about applying for asylum or you’re wondering whether or not you’re going to be able to show a credible fear of future persecution if you return back home, be sure to give us a call at 314-961-8200 or you can email us at jim@hackinglawpractice.com.

If you liked this video, be sure to click Like below and subscribe to our YouTube channel so that you get updated whenever we post new videos. Thanks a lot and we hope to see you soon. Bye, bye.

VIDEO: St. Louis Immigration Attorney Gives 5 Tips to Help Your Asylum Case

USCIS has been inundated with an increase in asylum cases over the past two years.  Many times, people file these asylum cases without an attorney and do so at their peril.  Developing facts and packaging documents and narrative together well greatly increases the chances of success on an asylum case.

In this video, Jim Hacking discusses 5 important things to keep in mind when applying for asylum.  Learn how the asylum process works, ways to strengthen your case and what the important questions are that any asylum applicant must answer in order to be successful.

We’ve been seeing an uptake in the number of people who come to our office to ask about asylum and we understand why. It’s typically because someone’s fearing that if they return to their home country they’re going to face persecution.

Now what exactly is persecution? Under the law persecution means that someone fears that they’re going to experience physical or psychological harm if they return to their home country. Now, the best way to show persecution, the threat of future persecution is by demonstrating that you have experienced persecution in the past. It’s important to keep in mind that persecution is not just some discomfort or that life would be bad for me if I have to go back home, or that life is bad for everybody back home. That’s not enough to demonstrate persecution and to demonstrate that you have a well-founded fear of persecution if you return home.

The persecution has to either be at the hands of the government, or your government has to be unwilling or unable to stop persecution by outside forces upon you. And there’s five categories of persecution that the law recognizes. The first three are pretty basic.

One, are you going to be persecuted based on race? Second, based on your religion, or being a member of a particular sect of religion, if one particular sect of your religion controls the country and another sect, and you’re a member of the minority sect or the least powerful sect, then you might be able to obtain asylum based on religious reasons. Nationality is the third reason that’s pretty straight forward, that because of what country you’re from or who you’re from that means that you’re going to suffer persecution, then you’re going to be able to at least make a colorable claim for asylum.

The last two are a little bit more tricky. The first is political opinion. So if you have expressed political opinions that your home government doesn’t approve of and you can demonstrate that people who make those kinds of opinions known or that you have made those opinions known and that because of that your government is going to torture you, or harass you, or cause you physical pain or psychological pain if you return to your home country, then you might be eligible for asylum based on political opinion.

The last group is membership in a particular social group. That’s a broadly phrased and more encompassing definition than the others. And there’s some sort of leeway there for asylum officers to work with you in trying to determine whether or not you receive asylum. Membership in a particular social group means that you might be part of a minority group, or that you’re a group that has received persecution in the past, for example homosexuals back in certain countries receive persecution, so a particular social group has been expanded to include women in situations where there are oppressive actions directed solely to women sort of like FGM or those kinds of things. So membership in a particular social group can also work as the basis for asylum.

Some people get confused about asylum versus refugees. The real distinction there is that people who seek asylum are in the United States. People who want to come to the United States because they’re experiencing persecution in their home country are determined to be refugees. And that’s the distinction there.

A couple of things to keep in mind that there is a deadline to file, that generally you have to file for asylum within one year of arrival in the United States, unless you had lawful status the whole time while you’ve been here. Then once you fall out of legal status you have one year from that point to file. The other thing is that you’re going to get two shots at the apple with asylum.

The first is, you’re going to be able to make an asylum application and ask an asylum officer to hear your application. That’s supposed to be a non-adversarial interview where you and the officer develop facts and talk about your case and why you think you deserve asylum. If the asylum officer agrees then you’re going to be given asylum and allowed to stay in the United States, get a work authorization card, and eventually get a Green Card. If not, you’re going to be put into removal proceedings and you’re going to have a second chance to demonstrate that you are entitled to asylum, that you should be allowed to stay in the United States because of that persecution.

Asylum cases are not easy. They’re very labor intensive. We spend a lot of time with our clients developing facts. You want to have a lot of evidence corroborating the facts that you alleged in your asylum application. We sometimes use experts who can explain country conditions and what the situation is for people like you back in the home country, and all these things go into play when putting together a strong asylum application.

The last thing to keep in mind is that you want to put everything in at the outset, because if you don’t, your asylum case’s probably going to be denied. And then, if you try to add facts later on, the government is going to accuse you of making things up and that you are not to be trusted. So I would not suggest filing an asylum application on your own. If you do have questions, if you need help, feel free to give us a call 888-782-4469 or give me an email jim@hackinglawpractice.com. Thanks a lot and we’ll talk to you soon.

 

VIDEO: St. Louis Immigration Attorney Explains What Happens After Your Asylum Case Is Granted

What happens if my asylum case gets granted by the USCIS asylum officer? Hi, I’m Jim Hacking, immigration and asylum attorney practicing law here in St. Louis, Missouri. Asylum cases are very interesting, and once they’re approved it’s a great thing. Having received asylum status in the United States protects someone from being sent back to their home country.

As we explained on other videos asylum is that part of the immigration law that allows someone who can demonstrate to an asylum officer that they will face certain persecution if they return home to stay in the United States and to not get sent back home. So this is a nice form of relief for people who are in the United States who might not necessarily have another way of staying. An asylum grants them that protected status.

So typically asylum cases are taking a long time to process these days. Once you get it approved you’re going to want to do everything you can to maintain that status and to not get into any trouble. So the first thing to keep in mind is if you’ve been granted asylum status you need to stay out of any kind of criminal trouble. The next thing you need to keep in mind is that after one year you can apply for a Green Card.

Now, some people ask, “Why should I apply for a Green Card when I already have asylum status?” And the fact of the matter is that people on asylum are barely here. They are here, they have protected status, and they’re not be sent back home. But you can lose your asylum status if commit certain crimes. And you don’t want to do that. And that’s one of the reasons why you want to move towards getting your Green Card.

We have a rule around there that you always take an immigration benefit as soon as it becomes available to you. So with our asylum clients, as soon as they get asylum, we urge them to get their Green Card as soon as possible. That’s important for two other reasons outside of the whole criminal context.

One is that there could be a change in country conditions. Let’s say that you received asylum because you were going to be oppressed by the ruling government. Let’s say that for whatever reason that ruling government is no longer in power. USCIS does have the authority under the law to revisit your asylum and to reconsider whether or not you should be continuing to receive asylum status. So think of it as a temporary protection that could be lost. It doesn’t happen all that often, but there’s really no reason to not get your Green Card and to get into that next run on the immigration ladder.

The other thing it can happen is that your own current conditions can change. Not only do we have to be worried about what happens with the country, but let’s say that you were being granted asylum because you are a member of a particular religious group and then you decide that you’re no longer member of that religious group. Now I realize that this is pretty rare and that it would be foolish to do this but you could lose your asylee status based on that as well. So if you’re no longer in that protected class there’s a way that the government could take away your asylum status and send you back home unless you have some other way to stay here.

So those are the two main things you need to keep in mind after getting asylum, is you need to make sure to get that Green Card. The other thing to keep in mind is that if you come by yourself on asylum status you can apply for your spouse or children to come after you’ve been granted asylum. So there is a mechanism under the law that allows you to file a form and to sponsor your spouse and children to come as asylees. Then they too would be eligible for Green Cards later on.

If you have any questions about an asylum case, if you’re case has been pending for a while, that’s not particularly unusual. These cases are taking a long time to adjudicate these days. We’ll talk in other videos about what happens if your asylum case is denied. Right now we’re just focused on the asylum case with the asylum officer and what happens after it’s granted. So if you have any questions give us a call 314-961-8200 or you can email me jim@hackinglawpractice.com. Thanks.

VIDEO: St. Louis Asylum Attorney Jim Hacking Reveals the Dirty Little Asylum Secret

What is the dirty little secret that nobody tells you about asylum law in the United States? Hi, I’m Jim Hacking, immigration attorney practicing law here in Saint Louis, Missouri.

Our office turns down more asylum cases than we take, and the reason we turn them down is because a lot of people, although they come from countries that have hardship and suffering, the individuals would come to see us can’t show to that harm or bad conditions would apply uniquely to them, that is they have to show that if they are to return home, that they face persecution themselves, that is something more than things are generally bad in the country.

A lot of people who come to see us and they’ll try to explain to us why things are bad, and what’s wrong with their country, but the one dirty little secret that no one ever talks about in asylum is that if what you’re asking the asylum officer to conclude does not jive or match up with what US foreign policy is, your asylum case isn’t going to get very far.

Now, how does this work in the real world? I’ll give you an example. We were once contacted by a Palestinian fellow, and he was thinking about applying for asylum.

In order to be granted asylum, he would have to demonstrate that Israeli defense forces (an ally of United States) were oppressing Palestinians and him in particular. While he did have a story or two about problems that he’d had with Israeli defense forces, he didn’t have anything particularized or to show that it was unique to him, but more importantly, it was very unlikely that he would be able to convince American asylum officers would conclude that Israel was oppressing Palestinians. They would have to take a political stance that is directly contrary to US foreign policy.

We told that person that the likelihood of him getting asylum based on these facts were very slim. Now, at the same time, we’ll give you an example of another one where foreign policy and the asylum application do track each other. We were contacted by a lady from Afghanistan who had been a doctor and started a women’s clinic and had been threatened by the Taliban with death for her political activity.

This was a very strong asylum case, and the main reason is a strong asylum case was because it’s very easy for an asylum officer to conclude that the Taliban threats were real, and that the threats to her coincided with US foreign policy, so we weren’t asking them to conclude that an ally was doing something wrong, or unethical, or oppressive.

You really need to keep this in mind when considering asylum, it’s something that a lot of people don’t talk about, but after having seen a lot of asylum cases and seeing those that succeed and those that don’t, it’s really imperative that you make sure that your application coincides with US foreign policy.

If you have any questions about this, feel free to give us a call, 314-916-8200, or you can e-mail me, jim@hackinglawpractice.com. Thanks.

VIDEO: St. Louis Asylum Attorney Jim Hacking Discusses New National Origin & Religious Freedom Case

Hi, I’m Jim Hacking, immigration and asylum attorney practicing law here in St. Louis, Missouri. The Board of Immigration appeals recently handed down a very interesting decision. It involved a man from Kazakhstan. He was an ethnic Russian, he was not a native Kazakhstan, and so the man had filed for asylum in the United States.

He argued that he was entitled to asylum for two reasons, the first being that he had suffered persecution in the past based on his Russian ethnic background, and the second based on his religion as a Christian. Kazakhstan is a mostly Muslim country with a harsh military rule, and the man had sought asylum before an immigration judge.

When he went in front of the immigration judge, the immigration judge found him credible, and found that his testimony was believable. What the immigration judge concluded was that the man had not demonstrated enough past persecution to trigger a presumption. Presumptions are very important in an asylum, and that’s sort of what I wanted to talk about today.

A lot of times, in immigration land, the burden is on the person seeking the immigration benefit to prove the matter asserted. That is, that sometimes most of the time, the burden is on the person seeking the immigration benefit to show certain things, so as to being entitled to that benefit. There are certain times where that burden gets shifted from the person seeking the benefit to the government, and then the asylum work, the way this works is that if the individual shows that they’ve suffered past persecution, then the burden shifts to the government to demonstrate that the person is not going to face persecution if they are to return back home.

This is a reason why demonstrating past persecution in asylum cases is so important. The reason is it’s important is because it shifts that burden from the individual to the government. In this case, this man demonstrated four separate instances of past persecution. In one of them, he was beaten and robbed and kicked and yelled at for being a Christian and for being a Russian in Kazakhstan. There were other times where the man had interacted with law enforcement, and they had mentioned his Russian background, his Russian politics, and his Christian background.

Despite all that, despite the four different instances and despite the fact the immigration judge had found the man credible, the judge refused to shift that burden and to place that presumption onto the government, and to force them to prove that the man would not face persecution if he were to return back to Kazakhstan.

The man appealed to the Board of Immigration Appeals. The board, after noting he was credible, and after noting the four separate instances the man had suffered over a 10 or 15-year period, said this man has shown us enough by his credible testimony and by the stories that he’s told, and the corroborating evidence that he had that the government was then going to have to show that if he were to return home, he would not face persecution.

The court reversed the finding of deportability, and sent the case back to the immigration judge so as to allow the Department of Homeland Security an opportunity to rebut that presumption. It wasn’t an outright win for the fellow, but he’s going to have another shot at it in front of the immigration judge, and this time, the government’s going to have to demonstrate that it’s unlikely that he’ll face persecution if he were to return home.

It’s a real interesting case. Very instructive for people who want to file religious-based or political-based or ethnic-based asylum applications. If you have questions about this case or are thinking about filing your own asylum case, I want you to pick up the phone and give us a call, (314) 961-8200. Thanks a lot.

 

VIDEO: Can I work and travel while my asylum case is pending?


Can I work and travel while my asylum case I pending? Hi, I’m Jim Hacking Immigration Attorney practicing law here in Saint Louis, Missouri. We’ve been filing a lot of asylum cases lately and one question our clients often have is “Can I work while my asylum case is pending?” And “Can I travel?” Is the other question they ask us.

Well it’s certainly true that when you file for asylum you have to wait a little while before you can apply for a work authorization card. The wait is five months. After your asylum case has been pending for five months, that is five months from the date on the receipt notice that you receive back from the asylum office. You can apply for work authorization and for a travel document. With travel, that’s always a tricky subject. It’s going to be our recommendation while your asylum case is pending that you not leave the United States.

People who are here seeking asylum are barely in the United States from a legal perspective, and so it’s very dangerous to leave the United States while your asylum case is pending no matter what stage of those proceedings you are. Until you get the asylum approved and get the asylum document, it would be foolish for you to leave the United States while that case is pending. It’s okay to get the travel document and to have it in your back pocket in case an emergency arises. But it will be our strong recommendation that while your asylum case is pending before the asylum office, that you not leave the United States just because you don’t want to ever leave it up to some customs official’s discretion as to whether or not you get to come back to the country.

hope it goes without saying that if you have an asylum case pending and you’re claiming that it would be unsafe for you to return to your home country because you would face persecution. I think it goes without saying that that would be silly and foolish and reckless for you to then not only leave the United States while your asylum case is pending, but to then go back to the country that you’re seeking asylum from. That would be fatal to any asylum application and I can almost guarantee you they are not going to be able to get back in the United States.

As far as work authorization, you’re going to be able to work once those five months are up and you’ve filed for your work authorization card. That work authorization card will also serve as the basis for you to be able to get state identification benefits which you should do. It’s also going to allow you to get whatever other identification that you need. You’re going to need that in order to get your social security card so that you can work. A work authorization card in asylum is good for one year.

The first one is free and after that there’s a filing fee associated with it that you’re going to have pay every year. You’re also going to make sure that your work authorization card does not expire before you file for a new one. It’s one of hassles of asylum is you have to keep renewing that work authorization card. But it is a benefit that America bestows on people who are seeking protection within the United States. It’s sort of a trade off, yeah it’s not the most convenient thing in the world but at the same time you are able to work.

If your asylum case was denied and you were placed in the deportation proceedings, you can still continue to get your green card … I’m sorry, your employment authorization card renewed until such time as that case is finally adjudicated.

If you have any questions about employment authorizations cards or travel documents within the asylum context, feel free to give us a call 314-961-8200 or you can email me jim@hackinglawpractice.com.  I’ll be happy to answer any questions that you may have. Thanks.

 

VIDEO: Tips for preparing for an asylum interview

What happens at an asylum interview? Hi. I’m Jim Hackings, immigration and asylum attorney practicing law here in St. Louis, Missouri. The asylum process takes a very long time. At the outset, we work with our clients to develop a lot of evidence to show that they are going to suffer prosecution if they returned back to their home country. We do that by getting testimony through affidavits which are signed, sworn statements under oath that demonstrate that if a person returns to their home country, they’re going to be persecuted based on one of the five prohibited reasons.

We do that by developing more evidence from country conditions. We get sometimes expert testimony or country reports that show from either the State Department or news stories that show what happens to the type of people that are asylum applicant is if they are in that home country. Then, we try to demonstrate either past persecution on the part of the person taking asylum that they have been persecuted because of one of the conditions that they have or memberships that they have.

Then, after that, we wait. The asylum application gets filed at the Asylum Office and someone gets fingerprint shortly thereafter, and then the asylum officers are very backlogged right now. There had been a real upsurge in asylum applications; and so, there are cases that are awaiting at least a year before an interview. That year, it does give us an opportunity to develop more evidence that we can present at the interview. It also allows us to prepare our clients for an interview.

What do we tell our clients when they come in to prepare for an interview? We instruct them that when they do go to the interview that their job is to answer questions. They want to tell their story, and this is a little bit more conversational than a typical interview. An asylum interview is not supposed to be adversarial. That is the asylum officer is not supposed to be grilling the person and asking him lots of tough questions. Instead, it’s supposed to be a back and forth where the asylum officer is a neutral observer. They’re not trying real hard to keep someone out, and they’re not trying real hard to get someone in. They’re supposed to be an honest broker and to demonstrate the fairness in the entire proceedings.

When you go to your asylum interview, obviously the most important thing is to tell the truth. At the very beginning, you’ll have your hand up and you’ll be sworn under oath to tell the truth, and then you’ll tell your story. The asylum officer will ask you lots of questions about what persecution you suffered in the past, why do you think you’re going to be persecuted. I always ask my clients what would happen if you got off the plane tomorrow? Ask them to envision that, to describe that, the outline of things of what would happen to them, and then to explain why those things would happen to them because with asylum, you always have to remember you can’t just say that conditions in the home country are tough. You have to show that for you as a particular person, because of your particular status, or membership in a group, or whatever that you’re going to suffer prosecution, you yourself. We really work with the clients. We role play. We act out the asylum interview. We have videos of asylum interviews. We really try to get our client ready for anything.

In the interview itself, we always try to let our clients answer the question themselves. We, too, try to be an honest broker and we don’t want the asylum officer to believe that we are coaching the witness or that we’ve taught them how to testify. We want it to be a natural flow and we want everyone to feel like the asylum seeker has been heard. We will , of course, jump in if the officer does become abusive or ask questions that are out of line. We’ll also jump in if we feel like the asylum officer isn’t understanding what our client is saying, or if our client isn’t understanding what the asylum officer is asking.

Asylum interviews are very thorough. The asylum officer has pretty much free range to ask about all aspects of your life. They’re going to want to know all the reasons why you think you’re going to be prosecuted, all the reasons you’ve been prosecuted in the past, and ask for evidence to support that. You have to bring your own translator to an asylum interview. You can also submit more evidence at the interview. You want to make sure at your asylum interview that you present all of the evidence. If you have testimony from family members or if you have other documentary evidence you submit, and all that at the asylum interview or beforehand.

You don’t want to try to submit it afterwards, and you don’t want to save it for later on at the immigration court if your asylum case gets denied because if you don’t bring out things at the asylum interview, then later on, the government might argue that you have no fabricated these “new evidence,” and try to deny your application based on that.

Every asylum office handles these interviews a little bit differently. Every asylum officer handles this a little bit differently. I never really had a problem with an asylum officer being out of line or being abusive. I try to get my clients mentally prepared for the interview that if they’re going to be answering one question, and then officer has some other question, you’re back with a smile ready to answer that next question. You do have to be an advocate for yourself and you do have to tell your story. It’s one of the great things about the process because you do to get to tell your story. Then, it’s up to the officer to decide whether or not you’re going to suffer a prosecution so as to warrant an award of asylum. That is, should the government give you asylum in the United States.

I hope this answers some of your questions about what happens at the interview itself. If you have any questions about the asylum process or about the interview, feel free to pick up the phone and give us a call, 314-961-8200 or you can e-mail us, Jim@HackingLawPractice.com. Thanks.

 

VIDEO: Asylum Seeker Does Not Have to Show Persecution of Everyone in Social Group

Does somebody seeking asylum in the United States have to show that everyone in their particular social group back in their home country suffers the kind of persecution that they fear? Hi, I’m Jim Hacking, immigration and asylum attorney here in St. Louis, Missouri. The Seventh Circuit Court of Appeals in Chicago recently handed down a decision reversing an immigration judge and the Board of Immigration Appeals decision on an asylum case. It’s an important case because of the principles that the court recognized in discussing the case.

You know, with asylum, you always have to show that you are being persecuted or will face persecution if you return home because of a certain characteristic. You can’t just say, “Well, times are hard for everyone back in my home country. Please give me asylum.” You have to show either that you’re going to be persecuted because of your race or your religion or your political opinion, and one of the categories that asylum allows for is when someone says they are a member of a particular social group and that because of that membership, they’re going to be persecuted if they are forced to return home from the United States. That’s the basis of their asylum claim.

In this case, a former Mexican police officer had sought asylum in the United States because he felt that if he were to return home, he would face persecution. The asylum office denied his asylum claim, and his case was sent to the immigration judge. Remember, in asylum, if you don’t win the first time with the asylum officer, you have the right to go in front of the immigration judge in deportation proceedings and seek asylum a second time.

In this case, the man and his wife both testified that after he left the police force, that in Mexico he continued to receive threats, that there were men looking for him, that he had heard that men were trying to kill him. People had come looking for him at various places, even though he had changed professions. He was no longer a police officer, trying to work in an office supply store, and the bad guys figured out who he was and where he was, and he had to flee. It was on this basis that he sought asylum in the United States because he argued that if he were to return to Mexico as a former honest police officer, that he was going to face persecution.

The Department of Homeland Security continued trying to deport him. They also argued that he shouldn’t get asylum because he couldn’t prove that it was his honest nature as a police officer that was going to cause him to be persecuted, and more importantly, they argued that he could not show that all honest police officers in Mexico faced persecution.

The immigration judge incredibly bought this argument, and the immigration judge said, “Well, because, young man, you haven’t shown that you will face persecution and that everyone in your former occupation faces persecution back in Mexico, because you can’t meet that almost impossible burden, we’re going to deny you asylum.” The case went to the Board of Immigration Appeals, and the Board of Immigration Appeals approved the immigration judge’s decision and said that the Department of Homeland Security was right, that the man from Mexico should not receive asylum in the United States.

It’s a good thing that his attorney kept persevering. It’s a good thing that the attorney realized the absurdity of the holding of the immigration judge and the Board of Immigration Appeals, and the attorney took the case to the Seventh Circuit. Now, the circuit courts are the courts just beneath the US Supreme Court, so it’s important to think about all the effort and energy that the attorney and the man from Mexico put into this case and how ridiculous it is that the government forced them to do all this work when it seemed readily apparent, even to the immigration judge, that the former police officer was very credible.

The judge did not make any factual findings contrary to the position of the man from Mexico, and by all accounts, he’d been an honest and upstanding person in the United States since arriving and that no one said that the claims he was making about why he would face persecution if he returned to Mexico were to be disbelieved. So everyone knew he was an honest person. Everyone believed him, but the immigration judge and the Board of Immigration Appeals said, “Well, even though we believe you, we don’t think you are showing that everyone who goes back to Mexico faces persecution from these bad actors and that the government couldn’t protect you from these bad actors.” It’s really sort of ridiculous.

The Seventh Circuit Court of Appeals thought the same thing. It’s a relatively short opinion. It’s only six pages, which is unusually short for an appellate court looking at an immigration/deportation case, but the court made clear that they weren’t going to just sit by and accept the thin analysis offered by the Board of Immigration Appeals and the Department of Homeland Security.

They noted that it was an impossible burden that the judge was asking this man to show, that every person who was an honest police officer back in Mexico would face persecution. It said that there’s no way for the officer to ever achieve that high level of scrutiny and to prove that persecution would occur for all people in his former line of work, so the court reversed the decision and said this case should go back to the Board of Immigration Appeals, back to the immigration judge to determine whether or not he himself had shown persecution.

The court also had another interesting paragraph at the end of its decision. In the opinion, the court asked why are we even deporting this man. Why does the Department of Homeland Security want to even deport this man? Clearly, he’s shown that he’s going to face persecution, and if the court below believes that he should not receive asylum … The court urged, the Seventh Circuit urged the prosecutors to exercise prosecutorial discretion. They said there’s no reason to deport this person back to Mexico. He’s done everything he’s supposed to do, and they really urged a rethinking of the entire case.

The Seventh Circuit is always willing to scrutinize the Board of Immigration Appeals very carefully. There’s some judges up there who really take a harsh view of some of the shoddy analysis done by the Board of Immigration Appeals, and we really applaud the court for taking that hardline stance and requiring the government to go beyond mere pleadings and to explain the real reasons why they’re making these somewhat irrational decisions. We wish every circuit court was as expansive in its view of scrutiny of the Board of Immigration Appeals, and we hope that continues.

If you have any questions about this very interesting case or about how asylum might apply to you, if you think you’re facing persecution if you return to your home country, please give us a call, 314-961-8200, or you can email me Jim@hackinglawpractice.com.  Thanks.