Immigration To The USA, Uncategorized

Block on Asylum Ban Puts Trump on Ice

Author: NYC Immigration Lawyer Alena Shautsova

Throughout his time in office, President Trump has been waging war with anyone who dares attempt to claim refugee status in the United States. Whether it has been his policy of detaining and separating children from their families, in what can only be described as concentration camps; or his administration’s attempt to strip asylum seekers of their humanity by detaining them almost indefinitely, after they had passed their ‘credible fear’ interview. Trump’s administration has presided over the purposeful disregard for international law and its moral responsibility to protect those who arrive at its door seeking safety.

If we were to list every legal and regulatory wall erected by this administration we might be here all day. So, let’s skip to Trump’s cherry on top – his almost wholescale ban on asylum claims in July 2020 via changes to the regulations around the so-called ‘credible fear’ screening that new self-referrals are subjected to upon entry to the country.  

Upon entry to the US, an asylum officer from the USCIS conducts an interview designed to identify whether there is a “significant possibility” that the person in question has a “well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her home country.” Since July, the interpretation of what kind of applicant might meet this set of criteria has been severely narrowed.

Changes made by the Department of Homeland Security’s Chief Executive, Chad Wolf to the regulatory framework governing the interpretation of US law and, consequently,  the operation of ‘credible fear’ interviews, have lead to the denial of almost all asylum cases since July. In a letter to the DHS, Human Rights Watch state that Chad Wolf’s intervention has changed the way that “a particular social group” is defined, putting it at odds with the pre-established legal definition.

Now, when a ‘credible fear’ interview takes place, interrogators no longer understand “a particular social group” in the broader sense in which it was prior understood. Self-referring refugees must be seeking sanctuary from persecution as a consequence of just their race, religion, nationality or political opinion – without consideration of the fact that being part of other types of ‘social groups’ might cause a ‘credible fear’. According to Human Rights Watch, this will weigh heavily against applications from Central America, where, for some, gang culture is a necessary means of existence. It will hamper applicants seeking refuge due to their gender or sexuality. In some parts of Uganda, to be openly gay is to sign a death warrant. After being publicly shamed, a gay man, or woman, can be maimed or murdered. The changes in interpretation as to what should constitute a “particular social group” by law, will mean almost certain deportation for these people back to the snake pit from which they have fled.

Now the U.S. District Court Judge, James Donato has placed a block on the further operation of this rule.

He explained that the regulatory change sought to seriously alter the grounds on which people were able to qualify for asylum. And, if rejected asylum applications did find themselves before a court, the government’s measures had greatly broadened immigration adjudicators’ scope for dismissing their case. Thanks to this administration, winning the possibility of staying in the US has become incredibly unlikely.

Donato’s block was sought on procedural grounds, on the basis that Homeland Security Chief, Chad Wolf wasn’t properly appointed and, therefore, had no legal prerogative to issue the rule. Judge James Donato highlighted the arguments made on the government’s side in prior cases in defense of Wolf’s legitimacy: “In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through.”

With only days until the next President’s inauguration, this rule is likely to be replaced by a more friendly culture at the DHS and USCIS. Joe Biden and his incoming clan have already pledged to raise the ceiling on how many refugees are allowed in from 18,000 per year to 125,000. Biden’s camp has made platitudinal noise about ‘righting wrongs’ and eliminating Trump policy with the finest ‘stroke of a pen.’ This might not be as easy as the Biden Administration thinks. Without swift legislative intervention, change may take some time. The legal and regulatory frameworks have been severely altered. If this administration does all the heavy lifting on immigration policy from the Oval Office, change might be slow and even suffer legal dispute.

Author: NYC Immigration Lawyer Alena Shautsova

Department of Homeland Security and Department of Justice published final rules regarding barring asylum to those who on their way to the United States transited through a different country. The new rule goes into effect on January 19, 2021.

To qualify for asylum, an applicant will have to demonstrate that either he/she filed for asylum or similar protection in one of the countries she transited through on the way to the USA, and received a final judgment of denial; or that the alien is the victim of severe human trafficking; or that all the countries the person transited through are not part to the International treaties protecting refugees: 1951 United Nations Convention Relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.

The rule will be applied to those asylum seekers who enter or attempt to enter the United States across the southern land border. It will be applied to all asylum seekers who do not meet exceptions, including unaccompanied minors. The rule will be used in connection with credible fear screening as well, necessary limiting the number of persons who may qualify to see the judge.

A usual route for someone from Central America would include crossing Guatemala and Mexico. These countries traditionally are not considered safe for asylum seekers, and as a rule, persons who are fleeing violence would not seek protection in Guatemala, where there is a high crime rate and violence of its own.

Note that this rule will not be applied to those entering the US via airports, or by the sea, entering the United States at other borders.

This new rule adds on to the incoming restrictions and modifications for asylum eligibility that will go into effect on January 11, 2021.

If you need help with an asylum case, call us at  917 885 2261 to reserve a confidential consultation.

Author: US Asylum attorney Alena Shautsova

Alena Shautsova, NYC based, US Asylum attorney helps clients to identify potential evidence in support of their asylum claims and helps to argue that the evidence shall be admissible in cases where the evidence is challenged on the grounds of relevancy, authenticity, or weight.

What evidence can be used in support of one’s asylum claim in the US? This is one of the most popular questions I receive every day from US asylum seekers. The evidence may range from the types: letters, photos, copies of forms, applications, medical records, but also may range in the likelihood of acceptance and weight.

First, one should know that in the US Federal court system there are rules of evidence: that is written rules which all participants of the court process (people, judges, and the prosecutors) should follow. In the “regular” , non-Immigration court, such rules have strict guidelines, for example, hearsay would not be allowed to be used by any of the parties (hearsay is a statement made out of court offered for the truth of the matter asserted. ) But in Immigration court, the same rules are more relaxed, and hearsay are often used by both the respondents (person who is placed in removal proceedings), and prosecutors.

One of the types of evidence we use in asylum cases is documents or documentary evidence. When we work with documents, we need to follow the rules of evidence and be mindful that any documents that can be produced in support of one’s asylum case can be questioned by the prosecutor or the judge on the grounds of authenticity (if it is a real, unaltered document), relevancy (if it relates to the claim), weight (if it contributes to the person’s burden of proof or shall be disregarded as biased),

In support of one’s asylum claim, a person may present a variety of documents: police and medical records, declarations and affidavits by witnesses, family, and friends, country conditions reports, etc. Often, an asylum applicant is afraid that the documents will be leaked to his/her government. But how then the US government can verify the documents without showing them to the authorities of one’s country?

The US government has established criteria for determining when its own investigative documents and reports are reliable, and they have to identify: 1). the investigator and his/her qualifications; 2). the objective and extent of investigation; 3). the methods used to verify the information discovered. Memo. Cooper, G.C. “Confidentiality of Asylum Applications and Overseas Verification of Documents and Application Information.” As such, the U.S. government can and often will investigate the documentary evidence presented by the asylum applicants to verify their authenticity. Often it is done via consular reports.

The standard for documents’ credibility is the same as for the testimony: and any adverse decision must be based on specific, cogent reasons that bear a legitimate nexus to the finding.” Zahedi v. INS, 222 F3d 1157, 1165 (9th Cir. 2000). However, if an applicant present forged documents, that affects his/her credibility in the absence of explanation or rebuttal. The use of fraudulent documents to escape the country of persecution has been recognized as not fatal to one’s asylum claim. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

Moreover, hearsay documents cannot be the basis for adverse credibility findings. (Consular report that the Russian’s birth certificate did not conform to the Russian records failed DOS’ own standards and lacked the name and title of the investigator, Balachova v. Mukasey, 547 F3d 374, 382-383 (2d Cir. 2008).

Now, the judge may not exclude the documents and then rule that the lack of the documents is a basis for adverse credibility findings. Notably, in the US, a document may be authenticated via various means:

Certification procedure stated in 8 CFR 287.6;

Fed R. Evid. 902(3)

Fed R. Civ. P. 44

An expert may authenticate a document; and

The inherent reliability of the document (business record exception to the hearsay rule, for example).

A common question herein would be: must affidavits be notarized? Notably, no. Affidavits may not be notarized. First, a person may use an exception to the notarization requirements: under the US Federal law, a sworn declaration may have the same weight as a sworn affidavit. But Immigration courts also may accept unsworn letters as authentic statements: an author may be in grave danger and would not risk his/her life going to the notary public to authenticate his/her signature. Note, however, that the judge would be the ultimate ruler regarding the admissibility of the evidence: at least one judge refused to accept letters by friends and family members stating that such letters were not objective. Djadjou v. Holder, 662 F3rd 265, 276 (4th Cir. 2011).

Finally, statements and reports, by both the applicant and the government, may be challenged for factual inaccuracies or because they represent highly unreliable hearsay. Grigoryan v. Barr, 959 F 3d 1233, 1240-43 (9th Cir. 2020).

That is where the skill and knowledge of your attorney may be particularly helpful and may bring that victory which every applicant for asylum is hopeful for.

If you need help with an asylum claim, please call our New York office to reserve a confidential consultation at 917-885-2261.