Law Talk Episode 29: Asylum Claims

In today's episode of Law Talk, Ben and Andrew discuss the intricacies of U.S. asylum claims, using the caravan from Central America as a practical example of the process.

Andrew: As Facebook slowly loads. All right, cool. It’s Wednesday, it’s Law Talk time.

Andrew: So, today, we actually have a really interesting topic, that I know I’m particularly interested in, considering the recent political events and all that kind of stuff. Which is asylum, and asylum claims.

Andrew: So, we do actually do a lot of asylum here at Tingen & Williams. So, I’m interested in getting the broad understanding of how asylum works, because it’s one of those things that there’s a lot of misinformation about.

Andrew: So, sort of like getting an understanding from the ground up seems to be important, especially in the modern climate and all that kind of stuff.

Ben: Yeah, it’s definitely been in the news a lot lately. We’ll touch on the caravan that’s been coming and how those people might end up having asylum claims. Yeah, asylum has definitely increased in the past, I don’t know, maybe 10 years or so.

Andrew: Yeah.

Ben: A lot of it from Central America, and as you mentioned, that’s a lot of what we do here for the deportation defense, ends up being asylum cases.

Ben: So, just a basic overview of asylum law, is it’s based in international law and human rights laws. So, it’s refugee laws from United Nations, these human right’s councils. It’s also in U.S. federal law as well.

Ben: Basically, provides protection to certain refugees who are fleeing their country because of persecution. There’s certain types of persecution that are covered in the asylum statutes. Mostly, it’s meant if you’re persecuted for political reasons, religion, gender, your race, things like that.

Ben: Then, there’s also this other category of if you’re persecuted for your membership in a particular social group. We can talk about what that covers.

Andrew: Yeah, that’s definitely something I think we should talk about today, because it’s one of the big misconceptions that people always have about asylum. Is that, it’s like, “Well, I’m seeking asylum for war.”

Andrew: As just a general broad term. When in reality, the law cites very specific reasons that you may claim asylum in the United States, and if you don’t fall into one of those reasons, you’re still eligible for being deported and all that kind of stuff.

Ben: Yeah, yeah, so then, these cases, they’re tough to win. I think, just the defense of asylum that’s in the immigration courts. I think the approval rates are maybe around 40%, between 40 and 50.

Ben: So, yeah, these cases are definitely tough to win. It’s not … I know there’s been a lot in the news about people come to the U.S. and they just say the magic word. They say asylum and then they get to stay here, but it’s there as a protection, and just claiming asylum, all that really gets you is an interview to see if you might qualify for asylum.

Ben: Then, if you might qualify, then you get a chance to actually apply and try to win your case.

Andrew: Yeah, I think that’s a really important point, because that’s one of the big things that’s been happening in the news recently. Like, everybody has a right to petition for asylum, but it’s still a legal case that they need to win and show proof that, “Hey, I actually qualify for it. I deserve asylum.”

Ben: Yeah, yeah.

Andrew: So, to transfer that, for example, to the caravan example that you mentioned earlier. Them showing up at the border and saying, “I want asylum”, is perfectly legal. Anyone can do that, it doesn’t matter.

Ben: Yes, yes.

Andrew: It’s their actual claims, individually, as members of the caravan that is interesting to lawyers and stuff, because that’s what’s important about it. It’s like, well, each individual in that entire caravan needs to have a qualifying reason for asylum.

Ben: Yeah, and so that’s a lot of the cases from Central America, are related in some way to the gang violence that’s going on down there. So, their claims fit into this particular social group category.

Andrew: Well, before we get into that, do you want to talk about the more broad, general categories? So, you mentioned religious and political reasons earlier.

Andrew: So, maybe you could give a broad overview to that, and show how the social categories fits outside of that, or as like the catch all?

Ben: Sure, sure. So, we’ll just use religion for example. Someone from any country, is a religion that is maybe in the minority in their country, or just the government opposes this certain religion.

Ben: So, in their country basically. They would come to the U.S. saying they’re afraid for their life. Maybe they’ve been beaten, maybe they’ve been arrested.

Andrew: Because of their religion.

Ben: Because of their religion. So, that’s where the persecution part is the harm you’ve suffered in your country. Whether it’s physical or mental abuse, anything like that. That persecution has to be because of your membership in the certain religion.

Andrew: Yeah.

Ben: So, they would come to the U.S., then they would have a chance to explain everything that happened, and try to find whatever evidence they could. That, not only are they being persecuted in their home country because of this religious belief, but also that the government of their country is unwilling or unable to help them. To stop this persecution.

Ben: So, if they can prove all those things, they have a good chance to win asylum. The things like religion, race, and gender. Those are the typical asylum claims.

Andrew: Yeah, like the big protected classes that you hear about a lot.

Ben: Yeah, they’re the easiest ones to understand, I guess.

Andrew: Yeah, I think that point you had about the government not condoning, but not being able to fight that persecution is also really important. Because, for example, using the Central America example you were using. There has to be an inability on the government’s side to, for example, fight gang violence that’s persecuting women.

Andrew: That’s just one particular example. So, especially with, for example, the people in the caravan. Their home country that they’re fleeing from has to be unable to protect them from this persecution, for their asylum claim to be valid.

Ben: Yeah, like you said, it doesn’t have to be the government is the one persecuting them or harming them. But, basically, the government is just unwilling or unable to help them.

Andrew: Yeah, and that’s sort of how it fits into that international human right’s rhetoric that you mentioned earlier.

Ben: Mm-hmm (affirmative), and that’s what people that aren’t familiar with asylum maybe don’t quite understand as well. That people that qualify for asylum, that win in an asylum case, have proven before either a judge or even a CIS officer that it’s likely that they will either be seriously harmed or even killed if they’re forced to back to their country.

Ben: So, it’s definitely a balance between … Of course, we don’t want to let everyone into the border, and you can’t just say asylum and we let you in and protect you. But, people that actually have asylum cases, they need protection and this is a worldwide … human right’s conventions, United Nations. This is an important thing we need to protect, no matter what country you’re from, really.

Andrew: Okay, so let’s go back to the catch all category that we were talking about earlier, of being part of a persecuted class. So, do you want to speak to that a little bit more?

Ben: Yeah, that one’s a little more complicated. I’ll try to make it clear if I can.

Andrew: It’s especially been complicated recently because of all the changes in immigration courts. Which is why it’s sort of every shifting right now.

Ben: We walked about that a few weeks ago, the matter of AB case that changed a lot of way this asylum stuff works. But, basically, just say someone from the caravan, let’s say from El Salvador, and they don’t fit into being persecuted because of their race, religion, any of that stuff.

Ben: Even when they come to the border and try to explain their case, the interviewing border patrol would ask them, “What harm have they suffered?”

Ben: So, if it’s you’re being threatened by gangs, being extorted by gangs, that kind of stuff. Then you ask why they’re being persecuted. The reason why is the most important, because it has to fit into this asylum definition. So, you have to show that you were persecuted for your membership in this social group, and that the social group has to be something you can’t change.

Ben: They say it’s immutable, that’s things like-

Andrew: Gender …

Ben: Yeah, those are things you can’t … And your religion. Things you can’t change or shouldn’t have to change just to be safe. So, I’m trying to think of some particular social groups that have been approved in the past. There’s ones like police informants. So, if you went to the police in El Salvador and testified against a gang member, that’s not something you can’t change, you’ve already done it.

Ben: Then, if after that, the gangs are coming after you and threatening you and your family, you can show that since you went to the police against these gang members, you’re now being threatened. If the police are unable or unwilling to help you, and there’s no where in the country you would be safe, that’s a claim you could win asylum on.

Andrew: I know another group would be politicians for example. I’ve been hearing a lot about, where they’re basically … They try to fight the corruption. It goes horribly, and then they claim asylum.

Ben: Yeah, so that kind of fits into political, and people have tried to get creative over the years to fit these social groups into the asylum definition. So, trying to say that opposition to gangs is a political belief in itself, and that depends on the case if you have a chance to win or not.

Andrew: That’s sort of where the term gets slippery though. What actually fits into a social group?

Ben: Yeah, and there’s decades of case law from immigration judges. The board of immigration appeals, federal circuit courts that have looked at the asylum definition and sort of built a foundation for what kind of cases you think might have a chance to win.

Ben: Again, that’s been changing a lot recently, so it’s not as clear as it used to be, what winning an asylum case is anymore. The basic definition hasn’t changed, so it’s all those elements that we just talked about.

Andrew: Okay, could you talk really quick about how you’d go about putting an asylum application or case together? Just because we sort of talked about the two major definitions. Like, you have to be part of some sort of social group and you need to have a credible threat to your life or safety.

Ben: Yeah, basically.

Andrew: But, what other things do you put into an application. What’s the processes that someone would go through?

Ben: There’s two ways to apply for asylum, here in the U.S. There’s what’s called affirmative asylum, and then there’s defensive asylum. So, affirmative asylum is if you’ve entered the U.S. legally or you just present yourself at a port of entry and claim asylum. Then, you have a chance. The law says you have to do it within a year of entering the U.S., but you then apply with the citizen and immigration service, USCIS.

Ben: Basically, fill out your asylum application and find any evidence you can. You submit the application through the mail, and then you have an interview with UCIS to determine your asylum case.

Andrew: Yeah, and this the recommended way of getting asylum? This is the proactive way.

Ben: Mm-hmm (affirmative), that would be someone that kind of knows what they’re doing, and stuff like that. Kind of the way it’s meant to be. So then, the other option is defensive asylum, which is again, a lot of people crossing the border from Mexico.

Ben: They entered unlawfully or they’re here unlawfully, and then they get placed in immigration proceedings in front of a judge. Then, they’re applying for what’s called defensive asylum, as a defense to their deportation. So, they have to prove their case in front of a judge.

Andrew: The way I understand that at least, is instead of being proactive in your asylum claim, like you said, it’s defensive asylum. It is, I’m already about to be deported, therefore I need a reason to stay in the U.S.

Andrew: So, for example, people often use family visas and that kind of stuff as another option, in addition to defensive asylum claims, all these other … There’s several routes you could take.

Ben: Yeah, once you’re in, removal proceedings, it’s just whatever you qualify for. A lot of people, they don’t know … Like, I don’t know the asylum process for any other country. I know it for the U.S. because I’m an immigration attorney, but a lot of people coming to the U.S. don’t know that they have a right to go to the border, go to a port, and say, “I want to apply for asylum.”

Ben: They just aren’t familiar with that process, so they end up in removal proceedings, and then apply for asylum that way. So, the basic process is, get a hearing in front of an immigration judge. Either you, or work with your attorney, you fill out an asylum application. It’s the I-589, and you state your claim for asylum.

Ben: There’s a lot of background information to put in, and then you submit your application, and then you get scheduled for what’s called an individual hearing. Which is where the judge will rule on your case. In the meantime, you’re looking for any kind of evidence you can find to support your case. Anyone else that can testify on your behalf, anything you can think of to build your case.

Ben: Which is hard in these asylum cases, because a lot of times people have been fleeing their country overnight. Trying to escape a serious threat to their family or their lives, so they don’t have time to go around and collect evidence. Like, go make police reports and get copies. So, it just makes it harder.

Andrew: Yeah, and this evidence could be as simple as a clipping from a newspaper or something.

Ben: Yeah.

Andrew: Where it’s like, hey, this persons house got burnt down or something.

Ben: Yeah, yeah, so there’s levels of how strong evidence is, but judges in immigration, and just anyone involved understands that a lot of times in these cases there’s just not going to be a lot of evidence. So, a lot of it comes down to the credibility of the person testifying, corroborating reports on the country conditions, and even expert reports on the conditions of their country.

Andrew: Okay, so I know another common question related to this is how long the process takes, because obviously being proactive and filing for asylum, and then defensive asylum are very different processes that take different amounts of time. The time has gone down recently. It spiked up for a bit, then with a bunch of new immigration judges being hired, it has gone back down.

Ben: Yeah, that’s been part of these changes in the immigration world. Cases have been increasing for the past few years, so the backlog for immigration courts have gotten so high. That in certain courts you could apply for asylum and you wouldn’t have your final hearing for another three, four years, sometimes more.

Ben: It was too long. So, the government has been trying to cut that number down, so they’ve hired more judges. Sped up the process to do that. So now, cases, at least in the D.C. court where we have all our cases, it’s closer to a year in total, from the time you turn in your asylum application to when you’ll have the final hearing.

Ben: So, it’s sped up a bit. It just depends on the court really, but they’re definitely trying to speed things up.

Andrew: Okay, and that can be both good and bad, depending on the circumstances.

Ben: Yeah, some cases, you really need time to try to get evidence, because the clients will have people they can hardly speak to in their country running around to police departments, getting police reports, death certificates, things like that, and trying to send them back to the U.S.

Ben: So, a lot of this, it just takes time to put it together.

Andrew: Okay, so any other general tips you can give someone, who’s thinking about, for example, filing an asylum claim, or just wants to know more about asylum in general?

Ben: If you’re thinking about asylum, there’s a lot, you can just Google it. There’s a lot of sites out there that will explain how it’s supposed to work. It’s important to realize that it’s a right that you have, and probably speak to an immigration attorney if you have a chance, because there’s a lot of weird rules that people don’t quite understand about asylum.

Ben: Like, you have a year to apply from the time you enter the U.S., otherwise you might not be eligible. It’s just kind of an arbitrary number, but that’s just what it is. So, if you apply a year and a day after you enter the U.S., you might of already lost your case.

Ben: So, there’s lots of weird rules, but it’s a right everyone should have.

Andrew: Yeah, it’s also important because it’s been changing so much recently. To at least talk to an attorney who can tell you what has changed, what new strategies are available, all that kind of stuff.

Ben: Yeah, and if your case doesn’t fit into the simple race, religion, political beliefs. If it’s in that other category, I think you would definitely want to speak to an immigration attorney, because it’s going to be a much harder case, and you’re going to need to know asylum law history. You’re going to need to know how to formulate the social groups, so that it fits in the asylum definition.

Andrew: Even just knowing what the judge will respond to is important.

Ben: Yeah, ’cause in these cases too, judges have a lot of discretion. So, the approval rates vary. Some judges approve 20% to 30% of the cases, some judges approve 60% of the cases.

Ben: So, when you get a case, you’re randomly assigned a judge, and that can determine a lot of how successful your case might be.

Andrew: All right, did you have any final thoughts about asylum? Anything that we missed in our discussion today, or … ? Like a lot of the things we talk about, it’s one of those things, that it’s so broad that there’s a lot of specific rules. What other general things, if anything, that you can think of that we haven’t covered yet?

Ben: So, I guess we haven’t talked much about … Like we said, we were just talking about the caravan. Someone that comes to the U.S., then they’re caught by immigration crossing the border, and they say they have an asylum case. So, what happens immediately after that is they’re sat down for what’s called a credible fear interview with an immigration officer and they have to pass that first, before they’re allowed into the U.S., to get a chance to apply for asylum.

Ben: So, they don’t immediately go in front of a judge and have three, four years, or a year to stay here and try their case. There’s a lot of checks in there to make sure that they have a case before they’re allowed to enter. Because, if they don’t pass that credible fear interview, they’re basically just deported on the spot, and sent back to their country.

Andrew: Yeah, I guess that is really interesting, because they don’t have visas or other ways to legally enter the United States. So, showing that you have a credible fear of, like, “Hey, if you turn me away, there’s a great threat of violence.”

Andrew: Is really important to that. Specifically just crossing the border.

Ben: Yeah, that’s kind of the risk. There’s talk of denying all asylum seekers or just not letting anyone in the border. There’s people, probably in that caravan, there’s people crossing the border every day that have actual asylum claims. There lives are actually in danger if they have to go back to their country.

Ben: So, to say that we just won’t let anyone in, I think that’s pretty dangerous for a lot of people. Not to mention it goes against human right’s laws and our own immigration laws. But, that’s a separate issue for another day.

Andrew: Yeah, we’ll just have to see how it plays out. So, I think that’s about it for today.

Ben: All right.

Andrew: We’ve hopefully given a lot of good information about asylum claims and that kind of stuff.

Ben: Yeah, it’s a tough one to explain.

Andrew: Yeah, yeah.

Ben: But, hopefully, a general overview at least.

Andrew: All right, that’s it for today. We’ll see everybody, same time, same place, next Wednesday, and I hope everyone has a nice week.

Ben: All right.

Andrew: End.

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