Client: Lawful Permanent Resident
Client’s Country of Origin: Jordan
Case Type: Marriage Green Card/Asylum
Date of Application: March 2016
Date of Approval: Month 2019
In 2016, our client, a citizen of Jordan, entered the US on a visitor visa for personal travel. Shortly afterward, he applied for asylum. During the waiting period of the asylum application, our client united in marriage with a US citizen, and Chief Paralegal Connie Cook of Herman Legal Group assisted with filing for a marriage green card application concurrently with closing the asylum case.
Cook’s tactic to immediately file for a marriage green card application and administratively close the asylum case was extremely beneficial for our client. Firstly, asylum applications and processing are largely more extensive.
The applicant must file lengthy documents, produce fingerprints, background screening, and attend interviews prior to determining asylum approval or denial. In the US, the average timeframe for an asylum application to decision takes six months; however, the USCIS previously stated that due to increased workload priority related to border enforcement, there have been scheduling delays for asylum interviews.
Due to the above circumstances, our client essentially waited on asylum approval for nearly three years. However, with Herman Legal Group counsel, our client’s marriage green card application was filed and approved this year within months.
Furthermore, the asylum interview was just scheduled this year, where Cook attended the interview with our client and administratively closed the case due to the pending marriage green card approval.
By the time his term of office ends on January 20, 2021, Donald Trump will have reduced immigration to the United States by more than half. He has managed to accomplish all of this through executive order and regulatory changes, without any change in statutory law — and therefore no need for cooperation from Congress.
The timing of this decrease in immigration makes it obvious that nowhere near all of it can be attributed to the COVID-19 crisis.
The administration has erected so many walls against immigration, both literally and figuratively, that it would be impossible to list them all succinctly. All told, Trump issued more than 400 executive orders and actions, each of them with significant impact. Some of the highlights (or, perhaps better put, lowlights) are listed below.
Border Control Measures
The Trump legacy begins at the US border. Some of the administration’s more objectionable policies include:
- Implementing a “Muslim travel ban” under which nationals of Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela were banned from entering the US on the basis of nationality alone;
- Closing the land border with Mexico, ostensibly for the purpose of preventing the spread of COVID-19;
- Placing detained undocumented immigrants in cages; and
- Separating parents from their children at the border (since rescinded after a public outcry).
Asylum
Asylum claims have been rapidly increasing since before Trump took office. The Trump legacy, however, includes:
- Rendering migrants ineligible for asylum at the border — they must apply for asylum en route to the US;
- Implementing the “remain in Mexico” policy that required asylum applicants to wait in Mexico while their asylum claims were being adjudicated (resulting in tent cities popping up on the Mexican side of the Rio Grande river);
- Entering into agreements with Central American countries (from which most recent asylum seekers originate) erecting barriers to asylum claims. and
- Ending Temporary Protected Status for nationals of Haiti, Nicaragua, and Sudan;
All told, these measures eliminate asylum as an option for most of those who seek it.
Refugee Admissions
The Trump years have also been dismal for refugees:
- Refugee admissions dropped to a little over 20,000 in 2018, slightly less than a quarter of the number admitted in 2016, and the lowest since the modern refugee program began in 1980.
- Trump also lowered the refugee admission ceiling to 18,000.
- Refugee admissions in the first half of 2020 plummeted to 7,754.
Interior Enforcement
Trump’s immigration initiatives did not stop at the border. Despite the Obama administration’s prioritizing of the apprehension of undocumented aliens with criminal records, Trump issued an executive order targeting all undocumented undocumented immigrants, even those not suspected of criminal activity. As a consequence, 36 percent of the undocumented immigrants arrested had no prior criminal record, compared to 14 percent in 2016.
Other actions taken by the Trump administration include:
- Assigning hundreds of Border Patrol and ICE agents to ten “sanctuary cities” to apprehend undocumented immigrants;
- Conducting 24/7 surveillance operations around the homes and workplaces of undocumented immigrants (since rescinded due to the COVID-19 pandemic);.
- Packing the nation’s immigration courts with anti-immigration judges, who have acted so aggressively that a backlog of more than 1 million cases has built up in the immigration court system;
- Increasing the number of deportation orders by nearly 50 percent; and
- Allowing private, profit-seeking companies to manage immigration detention centers, resulting in widespread reports of human rights violations.
DACA (Deferred Action on Childhood Arrivals)
The Obama administration offered forbearance to undocumented immigrants who arrived in the US as children. The Trump administration has offered them little more than hostility by canceling DACA protections, thereby putting immigrants who arrived in the US as children in danger of deportation.
This hostility has affected up to 500,000 undocumented immigrants. Even after the courts thwarted this policy, the Trump administration instituted a policy of denying all first-time applications and granting renewals for only one year at a time.
Modified “Public Charge” Rule
The Trump administration has strengthened the “public charge rule”, making it much easier to deny immigration benefits, including permanent residence, to an applicant based on poverty or use of public benefits. The new rules are so onerous that the Migration Policy Institute (MPI) estimates that nearly 70 percent of green card applicants are now at risk of denial on public charge grounds alone.
In addition to the foregoing innovation, the Trump administration has also ramped up enforcement of financial support commitments made by US sponsors of immigrants.
International Students
The Trump administration has initiated several unprecedented policies that make it more difficult for international students to study in the United States, including:
- Refusing to allow international students attending schools that hold classes entirely online (due to COVID-19 concerns) to be issued a nonimmigrant visa, to even enter the US to study, or to remain in the US for the “duration of study” period of the F-1 student visa.
- Placing barriers that make it difficult for international students to work in the US after graduation (articularly in H1B status), thereby deterring them from coming to the US in the first place; and
- Turning down a large proportion of F-1 (student) visas, especially for students from China.
Nonimmigrant Visas
The USCIS and the Department of Labor have increased their scrutiny of nonimmigrant applications for employment-based visas, including both the H-1B and the L-1, among others. Denials of H-1B nonimmigrant visa applications, for example, have more than doubled.
The Trump administration has also narrowed the scope of eligibility for the visa. Entry-level computer programmers, for example, normally do not qualify for H-1B status any longer.
Other hostile measures include:
- Eliminating deference to prior approvals, so that H-1B applicants don’t face an easier approval process the second time around; and
- Suspension of Premium Processing services, thereby increasing average wait times.
Employment-Based Immigrant Visas
The Trump administration’s hostility towards employment-based immigrant visa applicants (many of whom are highly qualified) is reflected in recent policy adjustments:
- Interviews are now mandatory, regardless of whether the applicant is seeking a visa abroad or is seeking to adjust status within the United States;
- The minimum investment amount for EB-5 applications (green card through capital investment) has been increased from $1 million to $1.8 million for investments in most of the US, and from $500,000 to $900,000 for investments in “targeted employment areas.:
It is worth repeating that the above-described hostile immigration policies are just the tip of the iceberg, and that all of this was accomplished without Congressional approval. The new Biden administration can reverse some of the policies with the stroke of a pen — but others will take considerably longer to implement.
Applying for asylum becomes a bit more complex when you are already facing deportation proceedings. Asylum may be your best removal defense when immigration authorities are trying to eject you from the US but you fear returning to your home country.
The grounds for receiving asylum goes beyond just ordinary fear of returning to your country—you must establish unwillingness to return due to having faced persecution in the past or well-founded fear of being persecuted upon return on account of race, religion, nationality, political opinion, or membership in a particular social group.
Asylum applicants bear the burden of proof in establishing that they meet this definition of a “refugee” under the Immigration Nationality Act. Applicants must also show that it is more likely than not that they will face persecution based on the above grounds if they are deported.
If you are already facing removal proceedings, your application for asylum should be brought straight to the immigration judge upon your court hearing. Remember, this is a complex process so retain an immigration lawyer to assist in your asylum defense.
Depending on the crime committed, your immigration lawyer might seek to obtain withholding of removal for your case if you are barred from obtaining asylum. However, the standard for granting withholding of removal are even greater than asylum as you must prove the probability of death or persecution if deported.
Immigration – Asylum
Upon your hearing, you will have the opportunity to tell the judge your story on why you fear returning to your home country. Your lawyer will ask you question to guide you along the way.
Your memory of past events and traumatic situations will become crucial to your asylum defense. It is likely that the immigration judge and the opposing counsel will question you too in order to gain as much information as possible. Remember to stay calm and give honest answers as any inconsistent responses may negatively affect the outcome of your case.
While asylum hearings may be temporarily uncomfortable, this is your chance to avoid returning to permanent distress. Tell the judge your complete story, and by the end of the hearing, you will receive his decision on whether your asylum application has been granted or denied.
Upon approval, you will be mailed additional forms stating your asylee status and right to maintain within the country.
This past week, Trump’s administration has made a major push in decreasing the flow of migrants to the US by implementing strict policy changes for asylum seekers targeted at the southern border. The new rule requires that if an immigrant seeking asylum first crosses through a third country prior to reaching the US, he/she must first apply for refugee status in that country.
An alien who enters or attempts to enter the US across the southern border after failing to apply for protection in a third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the US is ineligible for asylum.
Southern Border
This policy shift specifically affects Central American migrants — the largest population of asylum seekers—and places a heavy burden on passing-through countries such as Mexico and Guatemala. One primary reason for the political modification is that current asylum rules are largely abused.
The US immigration courts become backlogged with high volumes of asylum cases and, in return, very few applicants are granted asylum status. This is heavily due to applicants unable to meet the strict standard of proving qualifications for asylum, e.g. genuine fear of persecution if returned to their home country based on certain circumstances.
The new restriction has gained mass attention for its effect on US immigration. Some favor Trump’s initiative to limit the flow of migrants, and some government officials believe the policy will prevent the act of asylum shopping.
On the other hand, migrant advocacy groups and organizations such as the ACLU have already filed lawsuits against the Trump administration. The central argument of the complaints assert that the asylum rule violates international law and the US Constitution, while putting vulnerable lives at risk by limiting their opportunity for protection.
U.S. Customs And Border Protection Agency Holding Detained Migrants Under Bridge In El Paso
There are few exceptions to the policy which allow one to apply for US asylum once crossing the US-Mexico border. One exception is if a migrant demonstrates that he/she applied for asylum in one of the countries of which the migrant transited en route to the US and received a final judgment of denial from such country.
However, one circumstance to keep in mind is the commonality of asylum cases taking months to well-over a year to receive final judgment of whether asylum status is ultimately granted.
While the Trump Administration moves forward with changing US immigration strategy, this may also cause a shift in diplomatic relations with other countries. Currently, there is no confirmation that Guatemala and Mexico are in agreeance with this asylum procedure. Other notions of immigration reform may be anticipated to follow.
Asylum is a US immigration status that is based on humanitarian concerns for people who have good reason to fear that harm will come to them if they return to their home countries. If you receive it, you will be allowed you to live and work in the US for an indefinite period of time. Asylum is granted only to people who are present in the US, however. If you are located abroad, you should apply for refugee status, which offers equivalent benefits.
The Legal Standard
Syrian Refugees
To qualify for legal residence under US asylum law, you must first qualify under the legal definition of “refugee”, even though you are present in the US. In other words, you must prove that you are unable or unwilling to return home because of persecution or a well-founded fear of persecution that is based on:
- Your race;
- Your religion;
- Your nationality;
- Your political views;
- Your membership in a particular social group; or
- Your refusal to submit to coercive population control measures such as forced abortion or involuntary sterilization.
That’s a mouthful of legalese. To simplify the foregoing standard below is a clarification of the legal meaning of some of the italicized terms used above.
Persecution: Persecution means the infliction of harm or suffering or a credible threat to your life or freedom. A justifiable fear of imprisonment, torture, rape, murder or execution would likely fit this definition, for example. Persecution doesn’t have to be inflicted by the government — persecution committed by rival ethnic groups, drug cartels or terrorist organizations will qualify.
Well-founded fear: Essentially, “well-founded” fear means that you actually do fear returning home and that your fear is both reasonable and based on objective, provable facts.
Membership in a particular social group: This is a catch-all term meant to cover membership in a group that might be subjected to persecution. You only need to show your membership in this group — you don’t have to show that you are being personally targeted. For example, if teachers at secular schools are being targeted by militant religious groups in your country, you might qualify if you can prove that you were a teacher at a secular school.
Your Chances of Success
Success and Freedom
Asylum claims, never easy to win, are becoming more difficult. In 2018, for example, only 35 percent of asylum claims were approved after six straight years of declining approval rates. Nevertheless, it helps to have a lawyer. According to a study conducted by Syracuse University, over half of the asylum claimants who were represented by attorneys saw their claims approved, while only about 10 percent of unrepresented claimants were successful in winning asylum.
Affirmative vs. Defensive Asylum Claims
Asylum claims can be divided into two types — affirmative asylum claims and defensive asylum claims. Your asylum claim is affirmative if you have not yet been placed in removal (deportation) proceedings; otherwise, it is defensive. Affirmative and defensive asylum claims represent two different paths to the same result.
Timing
Processing Times
Although the total length of the asylum claim process varies greatly from person to person, the general range is between six months and several years. The exact timing depends largely on (i) whether your claim is affirmative or defensive and (ii) the specific facts of your case. Other factors, such as the political orientation of the person who examines your claim, also plays a role.
- If your claim is affirmative, the USCIS must schedule your initial interview within 45 days after your application filing date, and it must reach a decision within 180 days after that date. If your application is rejected, you will be placed in removal proceedings and your claim will be converted to a defensive asylum claim.
- If your claim is defensive, the immigration court system will handle it. You could wait years for a hearing — due to long backlogs, in July 2018 the average wait time was 721 days, and it is likely to have increased since then.
Unfortunately, your asylum claim will be considered abandoned if you leave the US, and if you remain in the US you cannot receive a work permit until at least 180 days after your filing date.
The “Affirmative Asylum” Process
It is best for you to apply for asylum before you are placed into removal proceedings, rather than afterward — overall, your chances of approval are significantly better if your claim is affirmative rather than defensive.
Form I-589
Application for Asylum and for Withholding of Removal
You initiate an affirmative asylum by filing Form I-589 with the USCIS. There is no filing fee, and you can submit your application by mail to the address listed in the instructions.
Fill out the form completely — leave nothing blank. If something doesn’t apply, simply write “N/A” (“not applicable”). Provide information that is as accurate and detailed information as you muster, but don’t try to guesstimate anything, such as an exact date — that could come back to haunt you later.
Supporting Documents
Include as many supporting documents to your asylum claim as you can assemble. These documents might include declarations from friends or family corroborating your story; newspaper articles reporting conditions in your home country; or a report from a medical expert if you are alleging previous physical harm or a psychological disturbance such as PTSD. All non-English documents should be accompanied by a certified translation.
Family Members
African Family
You can apply for asylum on behalf of your spouse and any children who are unmarried and under 21 if they are present in the US, even if they don’t independently qualify for asylum. You will need to prove your relationship with them (a marriage certificate for your spouse, for example), and each of them must complete a separate Form I-589.
The One-Year Deadline
To maintain an affirmative asylum claim, you must submit your application within one year of the date of your most recent arrival in the US. Limited exceptions exist, for example, if:
- You have been in a continuously valid visa status ever since your entry to the US (on a student visa, for example);
- You can show changed circumstances that affect your eligibility (recent political instability in your home country, for example); or
- You can show extraordinary circumstances that justify your delay in submitting your application.
Keep in mind that if none of the foregoing exceptions apply and you entered the US illegally, proving your compliance with the one-year deadline could be tricky.
Detention
U.S. Flag Behind Barbed Wire
You almost certainly will not be detained if you file an asylum claim before being placed in removal proceedings.
The Interview
If you file an affirmative asylum claim, the USCIS will send you an interview date within 21 days after the date that you submit Form I-589. You will need to bring originals of all of the supporting documents you submitted with Form I-589, along with their certified translations. Family members whom you included in your application must attend the interview with you, and you may bring witnesses as well as an interpreter. You can also bring your attorney with you.
Your interview will last at least an hour. Stay calm and be honest, even if the officer doesn’t seem to believe your story. Your attorney will also have the chance to make a short statement on your behalf, and the officer may ask him some questions as well.
Consequences of Denial
Denial Road Sign
If your affirmative asylum claim is denied by the USCIS, you will be placed in removal proceedings. Functionally, this means that your affirmative asylum claim will be converted into a defensive asylum claim, and you will get another chance to prove that your claim is valid, this time at a hearing before an immigration judge.
Pressing Your Asylum Claim in Immigration Court: The “Defensive Asylum” Process
You could end up in defensive asylum proceedings in one of three ways:
- You filed an unsuccessful affirmative asylum claim, and your case was referred to an immigration judge by the officer who rejected your affirmative asylum claim;
- You were placed in removal proceedings (perhaps after entering the US illegally or perhaps after overstaying your visa), and you subsequently filed a defensive asylum claim; or
- You tried to enter the US without a proper visa, claimed asylum at the port of entry, and immigration officers preliminarily determined that your claim was credible (thereby preventing you from being removed immediately without a hearing)
Detention
Police – Arrest – Detention
If you applied for asylum after you were placed in removal proceedings, you will probably already be in detention, and you might remain there until your claim is decided or you agree to return home. If you claim asylum at a US port of entry (at an airport, for example), the officer is legally required to detain you.
- If the officer preliminarily determines that your claim is “credible”, you will still not be released unless immigration officials determine that you are unlikely to skip your immigration hearing and that you are not a danger to the public. Even then, you will probably have to post bail and your whereabouts might be monitored by a GPS ankle bracelet.
- If you claim asylum at a US port of entry and your claim is judged “not credible” by US immigration officials, you will remain in detention until you are removed from the US (very soon afterward following expedited removal proceedings), and you will have no chance for an immigration court hearing.
Denial Rates
Once your case makes it to immigration court, the harsh reality of asylum claims is that denial rates vary drastically from judges to judges, from location to location and from year to year. The strictest judges deny 99 percent of all claims that come before them, while the most lenient judges, deny only 15 to 20 percent of the claims they adjudicate.
Although overall approval rates are now under 20 percent, this statistic is misleading — many cases are dismissed because applicants fail to show up at their hearing, while other applicants voluntarily withdraw their claims.
Immigration Court
Courthouse
Immigration hearings work a lot like criminal trials, except that you don’t enjoy some of the constitutional protections that you would enjoy in a criminal trial. Although you don’t have the right to a government-funded attorney, you may bring one with you if you are willing and able to pay for legal services on your own.
You can bring witnesses, and you will likely be questioned along with your witnesses. You will have a chance to present your case to the judge, either personally or through your lawyer. Either you or your lawyer can submit a brief to the court in support of your claim.
Appeals
If the court orders you removed, you can appeal the decision to the Board of Immigration Appeals (BIA). The US Attorney General is entitled to intervene in your case and overrule the BIA; however, this is rarely done. If the BIA rules against you, you can appeal to the US Court of Appeals. Very few claimants win at this level, however — the approval rate is about eight percent. It is also possible to be deported while your appeal is still pending.
Special Case: Marriage During a Pending Asylum Claim
Marriage
Some asylum applicants marry a US citizen while their asylum claim is pending, and then abandon their asylum application in favor of a marriage-based immigration petition. Although approval rates for marriage-based immigration are higher than approval rates for asylum applications, marrying a US citizen under these circumstances is likely to cast doubt on the legitimacy of the marriage.
Furthermore, if you entered the US illegally in the first place, you will not be able to adjust your status to a permanent resident without leaving the US and applying from abroad, even with a US citizen spouse. Leaving the US could be problematic, however, if you have spent more than 180 days in the US in unlawful status. You could be barred from returning to the US even if you marry a US citizen. It is usually better to marry first and never apply for asylum in the first place.
Special Case: Fraudulent and Frivolous Asylum Claims
Take care before you file an asylum claim. If your asylum claim is found by being fraudulent or “frivolous” (completely lacking in merit), you could be ruled permanently ineligible for any U.S. immigration benefits — even a visa based on other grounds, such as student status.
Permanent Residence and Citizenship
Once you are granted asylum, you must wait an additional year to apply for permanent residence. Your ability to apply for permanent residence is not guaranteed, however — if conditions in your home country improve during the one-year waiting period, you could be sent home instead. If you do receive permanent residence, however, you will be eligible to apply for US citizenship four years after the date that your green card was issued.