Overview
I have the opportunity in recent months to speak to Immigration and Customs and Enforcement (ICE) officers who work along the border. No doubt there is a surge on the Border. Immigration Detention Centers are at full capacity. The backlog for affirmative asylum interviews is currently two years depending upon the metropolitan area where the asylum applicant lives. If USCIS reject the petition, the case is referred to the Immigration Court. The current backlog with the immigration court system is over 500,000 cases. The average length of time for the individual merits hearing in Boston is 730 days, two years. The Board of Immigration Appeal (BIA) also has a backlog process. Depending upon the venue for an asylum case, the case could be in the judicial process for 4-6 years.
The problem is likely to be further exacerbated under the administration of President-elect Donald Trump. The appointment of Senator Sessions as U.S. Attorney General and retired Marine four-star general John Kelly as the new Secretary of the Department of Homeland Security strongly suggests that the immigration court caseload could double or triple (quadruple?) very quickly. Time will tell!
This article focuses on the very surprising difference on asylum petition outcomes based on venue. Notwithstanding the fact that asylum law is uniform throughout the country, the differences in outcome based on venue is dramatic. This articles focuses on the startling differences in asylum case outcomes based on venue. The title for article is based on a famous Latin Boogaloo song from the mid-1960s, “I’ll Never Go Back to Georgia” by Joe Cuba. Boogaloo was the fusion of traditional Afro-Cuban sounds with American Soul music. If you do not know this music, “google” the Boogaloo Assassins. Booglaloo has its roots in Spanish Harlem. The song purportedly had racial overtones based following the passage of the Civil Rights Act of 1964. It was not uncommon that a dark skinned Latin American did not sit in the back of the bus, because he considered himself “Latino”, and not “Black”.
The statistics suggest that if you are an immigrant in the South, you are in for a very tough time with your asylum case. Furthermore, the statistics suggest that if you are an undocumented immigrant with an asylum petition, the best strategy to win your case may be to move as far North as possible. Hence, the title of the article suggests that if you are an asylum petitioner, you should look to change venue to a more favorable jurisdiction.
U.S. Asylum – Basic Guidelines
People who have fled their home country because they fear persecution may seek asylum in the United States. The U.S. Congress passed the Refugee Act in 1980 in order to bring the U.S. into conformity with international refugee law. In the early 1990s the legacy INS (Immigration and Naturalization Services) separated the adjudication of affirmative asylum cases from its examination branch and developed a corps or specialists in asylum law.
An applicant for asylum in the United States must be physically present within United States in order to apply for asylum. Persons outside of the United States may apply for refugee status. Applicants for asylum and refugee status must meet the same legal requirements. A “refugee” is person who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group or has experienced such persecution in the past. The definition of a refugee does not include a person who has persecuted others.
The asylum applicant will prevail in an asylum claim if he can demonstrate a “well-founded fear” of persecution. The case law definition of persecution is “the infliction of suffering or harm upon those who differ in a manner that is regarded as offensive.” The harm does not need to rise to the level of long-term detention or torture. The persecution can be inflicted or threatened by a government or its agents such as the police or army. It is sufficient to demonstrate harm by persons or groups that the government is unable and unwilling to control.
A person must file the asylum application within one year of his last entry into the United States with two exceptions. The first exception allows for “changed conditions” in the person’s home country or U.S. law. The second exception provides for a late filing based upon “extraordinary circumstances.” Persons who are ineligible for asylum may also qualify for “Withholding of Removal” or protection under the Convention against Torture. These remedies offer a form of protection against being deported to the country where persecution is feared.
The asylum process allows for two procedural ways to file for asylum. The affirmative asylum petition is filed with U.S. Citizenship and Immigration Services (USCIS). The defensive asylum petition is filed with immigration court. The applicant in the affirmative process must be physically in the United States and not subject to deportation.
The defensive asylum process is adjudicated by an immigration judge when a person is in removal proceedings in immigration court. The applicant in the affirmative process can end up in immigration court when USCIS does not grant their asylum application or after undergoing a Credible Fear Interview with an asylum officer, expressed a fear of returning home at the airport, or port of entry or were charged as deportable for other reasons. The asylum petition functions as a legal defense to deportation. If the immigration judge denies asylum, an appeal may be made to the Board of Immigration Appeals. A denial in this court allows for an appeal to the Federal Circuit Court of Appeals.
The benefit of a successful asylum petition is permanent residency (Green Card) for the applicant and family members. Permanent residency leads to citizenship after five years of residency. Withholding of removal as a remedy against deportation, does not provide a pathway to citizenship, but provides a mandatory prohibition against deportation. Convention against Torture (CAT) benefits do not provide a pathway to residency or citizenship but provides employment authorization.
The Impact of Venue on Asylum Case Outcomes
The traditional South has several immigration Courts in Atlanta, Charlotte, and Memphis. Atlanta currently has five judges assigned to it. The average denial rate over the last five years was 87 percent based upon statistics from TRAC Immigration at Syracuse University. The average rate of denial in Charlotte over the last five years was approximately 80 percent. The results in Memphis which has three immigration judges are less onerous with a 53 percent denial rate. Two of the three judges deny 50 percent of the cases while a third judges denies 85 percent of the cases.
The results in the Southwest are hardly better. In El Paso the denial rate approaches 95 percent in El Paso. Dallas has a denial rate of approximately 85 percent. Houston is also in the range of 85 percent. In contrast, the denial rates in New York City improve dramatically. New York has over twenty judges with denial rates of 20 percent of lower, i.e. the judges approves 80 percent of the cases. One of the judges who heard over 2,200 cases in the timeframe of 2011-2016, has a denial rate of only 3.7 percent. Boston and Newark both have high approval ratings as well. Los Angeles and San Francisco generally have low denial ratings.
Summary
In some respect the New South is still the Old South. In the scheme of history, fifty years is not all of the long ago. Just as Bubba was getting use to his African-American neighbors after the passage of the Civil Rights Act, his new neighbors who moved from Long Island began complaining about his confederate flag that he proudly displayed in his pickup. While all of this was happening, nobody noticed that Juan and Maria started moving into the neighborhood and only speak Spanish. Bubba’s neighbors were not all that keen on Juan and Maria either. Juan started underbidding Bubba on construction projects and Maria charged less to clean houses. The degree of cooperation between local and state law enforcement with USCIS and ICE is very strong in the South. By contrast, I personally have witnessed cases where local law enforcement up in North with businesses completely staffed with undocumented workers.
What is my point in all this? While the law may be the same across the land with respect to asylum, the outcomes very dramatically based upon venue. The warm weather in the South may be enticing, but the probability of success in the asylum petitioner’s case is nil. The benefits of an asylum petition are significant so that the petitioner must sacrifice living in warm weather in order to live in a jurisdiction where he can win his case. At the same time, the degree of difference in judicial discretion is astounding. In my view the new administration is likely to enforce immigration with a “heavy hand”. It could be the only degree of leniency may be found in the right court in the right venue.
