Immigrants Use Asylum Applications to Delay Possible Deportation

Immigrants Use Asylum Applications to Delay Possible Deportation

Hotly debated strategy has become ‘widespread’ ahead of Donald Trump’s term as president

By
Miriam Jordan
Dec. 17, 2016 7:00 a.m. ET

Since the election of Donald Trump to the White House, immigrants have been rushing to apply for asylum—with cases many are unlikely to win—in order to remain in the country legally for a time.
The controversial tactic temporarily lifts the threat of deportation from undocumented immigrants. The asylum claims also enable applicants to obtain work permits and driver’s licenses while their cases crawl through the adjudication process.
“We are doing more and more of these cases,” said Jerome Lee, an immigration attorney in Norcross, Ga. “It’s an aggressive technique.”
Government data that would capture the recent surge in such applications isn’t yet available. But an American Immigration Lawyers Association advisory last month outlining “ethical considerations” relevant to such applications said, “the practice has become widespread.”
The strategy is hotly debated in the legal community, with some attorneys saying that applicants with bona fide claims are disadvantaged by a backlog exacerbated by those whose cases lack merit. Critics also say many immigrants don’t understand the risks. Other attorneys say they employ the strategy only under certain circumstances.
A judge last year indicated his intention to grant Ms. Alba’s request for cancellation of removal, and the Albas are expected to get their green cards in early 2016. Meanwhile, they received work permits and driver’s licenses. Photo: Greg Kahn for The Wall Street Journal
Supporters contend it is a legitimate practice, especially as long as Congress doesn’t overhaul the immigration system. Increasingly, they also view it as a fair pre-emptive move against Mr. Trump’s potential crackdown on illegal immigrants.
Since winning the election, Mr. Trump has said he would prioritize the deportation of two to three million criminals. The Migration Policy Institute, an independent think tank, estimates that about 820,000 have criminal records.
Some cities and schools have declared themselves immigrant sanctuaries, in case Mr. Trump pushes for larger-scale deportations.
“I have clients who have been here forever, have U.S. citizen children, and are desperate for documents because they are very afraid of President Trump,” said Neil Lewis, a Tampa-based immigration lawyer. “It’s a temporary fix.”
“Some people think this is scandalous and unethical. I think it’s unethical not to give my clients protection,” he said.
The U.S. grants asylum to individuals who can demonstrate a well-founded fear of persecution in their country of origin. Several steps, which generally take several years, follow before the government issues a decision. And, if denied asylum, an applicant is placed in removal proceedings, which buys them another several years in the U.S. because they are entitled to due process.
That could backfire, critics say. “You are intentionally putting in deportation proceedings people who’d been flying under the radar,” said attorney Marty Rosenbluth in Hillsborough, N.C. who deems unethical the strategy of filing for asylum with the intent of landing in removal proceedings. “Under Trump, they could be easily deported.”
On their applications, Mr. Lewis says his Mexican clients typically state that they fear harm to their children if forced to return to their home country. In most instances, such claims don’t rise to the government standard for applicants from Latin America.
“It’s a bad asylum claim, but it is not frivolous and can get you benefits,” he said.
‘I go places without the fear I felt when I didn’t have papers,’ said Ms. Alba, who has two other American children. Photo: Greg Kahn for The Wall Street Journal
Namely, applicants can get work authorization and driver’s licenses, which many states don’t issue to undocumented individuals.
About two-thirds of the 11 million undocumented immigrants in the U.S. participate in the labor market, according to estimates by the independent Pew Research Center.
Asylum applicants are entitled to file for a work permit if their application has been pending for 150 days. Given the current backlog in the immigration system, it can take three or four years for that first interview to take place, which ensures the issuance of work permits.
“The backlog is created by these lawyers literally flooding the asylum office with cases that lack merit,” said Charles Kuck, an Atlanta attorney. “It’s an abuse of the law.”
Meanwhile, he said, individuals with legitimate asylum claims wait even longer for a decision, to the detriment of loved ones still in their country who depend on the principal applicant’s case to be approved to legally immigrate to the U.S.
The number of asylum applications has soared in recent years. In the fiscal year that ended Sept. 30, the U.S. Citizenship and Immigration Services received 115,926 applications, compared with 84,142 in fiscal 2015 and about half as many as that in fiscal 2014. Slightly more than half of all asylum cases were denied in 2014, the latest year available.
Daniel Cosgrove, a spokesman for USCIS, said asylum applications are adjudicated on a case-by-case basis and that the agency doesn’t discuss them due to privacy concerns.
For some lawyers, the goal is to get an applicant placed in deportation so that they can then request “cancellation of removal” in immigration court. If a judge grants cancellation, the individual becomes eligible for legal permanent residency, or a green card.
“I believe there is a way to do this ethically, effectively and in the best interest of the client,” said Ava Benach, a Washington, D.C. attorney. “Some people have compelling circumstances, like a disabled U.S. citizen child.”
In early 2014 she filed an asylum application for Eufronia Alba and her husband, Edwin, undocumented Bolivians in Arlington, Va., whose U.S.-born son, Joshua, now 10 years old, has cerebral palsy.
Because the law requires that an asylum claim be filed within a year of an applicant’s arrival in the U.S., the asylum office referred the case to immigration court. Thus, Ms. Alba and her husband, who arrived in the U.S. in 2000, were in deportation proceedings—as their lawyer had anticipated.
Once in court, Ms. Benach requested cancellation of removal based on the extreme hardship that deporting the couple would create for their wheelchair-bound American child, who depends on them for every activity, such as bathing and feeding.
A judge last year indicated his intention to grant the request, and the couple is expected to get their green cards in early 2016.
Meanwhile, they received work permits and driver’s licenses.
“I go places without the fear I felt when I didn’t have papers,” said Ms. Alba, who has two other American children. Her husband, who works construction, secured a better-paying job, she said.
Still, some attorneys contend that strategy is fraught with risk.
“A strategy that works in one court doesn’t work in another,” said Mr. Rosenbluth, the North Carolina attorney.
He and others described clients who were unaware they could be deported after paying thousands of dollars to attorneys who promised them work permits obtained through an asylum application.
“Today, I see many hardworking people who have deportation orders because they fell for this trick years ago,” said Jocelyn Cortez, a Las Vegas immigration attorney.
Attorneys charge $3,000 to $10,000 per asylum case, which immigrants often pay in installments.
On a recent Tuesday, some immigrants in the waiting area of Taylor, Lee & Associates in Norcross, outside Atlanta, clutched forms on which they had scrawled “asilo” in Spanish, to describe their case.
Mr. Lee said his firm doesn’t submit frivolous applications, conducts background checks of clients and ensures applicants understand the process.
“Most of these cases probably won’t be granted,” said the attorney. Meanwhile, “at least you get a work permit during a waiting period. And you’re hoping there will be a change of immigration policy and priorities.”
http://www.wsj.com/articles/immigrants-use-asylum-applications-to-delay-possible-deportation-1481976003
Immigrants Use Asylum Applications to Delay Possible Deportation

Hotly debated strategy has become ‘widespread’ ahead of Donald Trump’s term as president

By
Miriam Jordan
Dec. 17, 2016 7:00 a.m. ET

Since the election of Donald Trump to the White House, immigrants have been rushing to apply for asylum—with cases many are unlikely to win—in order to remain in the country legally for a time.
The controversial tactic temporarily lifts the threat of deportation from undocumented immigrants. The asylum claims also enable applicants to obtain work permits and driver’s licenses while their cases crawl through the adjudication process.
“We are doing more and more of these cases,” said Jerome Lee, an immigration attorney in Norcross, Ga. “It’s an aggressive technique.”
Government data that would capture the recent surge in such applications isn’t yet available. But an American Immigration Lawyers Association advisory last month outlining “ethical considerations” relevant to such applications said, “the practice has become widespread.”
The strategy is hotly debated in the legal community, with some attorneys saying that applicants with bona fide claims are disadvantaged by a backlog exacerbated by those whose cases lack merit. Critics also say many immigrants don’t understand the risks. Other attorneys say they employ the strategy only under certain circumstances.
A judge last year indicated his intention to grant Ms. Alba’s request for cancellation of removal, and the Albas are expected to get their green cards in early 2016. Meanwhile, they received work permits and driver’s licenses. Photo: Greg Kahn for The Wall Street Journal
Supporters contend it is a legitimate practice, especially as long as Congress doesn’t overhaul the immigration system. Increasingly, they also view it as a fair pre-emptive move against Mr. Trump’s potential crackdown on illegal immigrants.
Since winning the election, Mr. Trump has said he would prioritize the deportation of two to three million criminals. The Migration Policy Institute, an independent think tank, estimates that about 820,000 have criminal records.
Some cities and schools have declared themselves immigrant sanctuaries, in case Mr. Trump pushes for larger-scale deportations.
“I have clients who have been here forever, have U.S. citizen children, and are desperate for documents because they are very afraid of President Trump,” said Neil Lewis, a Tampa-based immigration lawyer. “It’s a temporary fix.”
“Some people think this is scandalous and unethical. I think it’s unethical not to give my clients protection,” he said.
The U.S. grants asylum to individuals who can demonstrate a well-founded fear of persecution in their country of origin. Several steps, which generally take several years, follow before the government issues a decision. And, if denied asylum, an applicant is placed in removal proceedings, which buys them another several years in the U.S. because they are entitled to due process.
That could backfire, critics say. “You are intentionally putting in deportation proceedings people who’d been flying under the radar,” said attorney Marty Rosenbluth in Hillsborough, N.C. who deems unethical the strategy of filing for asylum with the intent of landing in removal proceedings. “Under Trump, they could be easily deported.”
On their applications, Mr. Lewis says his Mexican clients typically state that they fear harm to their children if forced to return to their home country. In most instances, such claims don’t rise to the government standard for applicants from Latin America.
“It’s a bad asylum claim, but it is not frivolous and can get you benefits,” he said.
‘I go places without the fear I felt when I didn’t have papers,’ said Ms. Alba, who has two other American children. Photo: Greg Kahn for The Wall Street Journal
Namely, applicants can get work authorization and driver’s licenses, which many states don’t issue to undocumented individuals.
About two-thirds of the 11 million undocumented immigrants in the U.S. participate in the labor market, according to estimates by the independent Pew Research Center.
Asylum applicants are entitled to file for a work permit if their application has been pending for 150 days. Given the current backlog in the immigration system, it can take three or four years for that first interview to take place, which ensures the issuance of work permits.
“The backlog is created by these lawyers literally flooding the asylum office with cases that lack merit,” said Charles Kuck, an Atlanta attorney. “It’s an abuse of the law.”
Meanwhile, he said, individuals with legitimate asylum claims wait even longer for a decision, to the detriment of loved ones still in their country who depend on the principal applicant’s case to be approved to legally immigrate to the U.S.
The number of asylum applications has soared in recent years. In the fiscal year that ended Sept. 30, the U.S. Citizenship and Immigration Services received 115,926 applications, compared with 84,142 in fiscal 2015 and about half as many as that in fiscal 2014. Slightly more than half of all asylum cases were denied in 2014, the latest year available.
Daniel Cosgrove, a spokesman for USCIS, said asylum applications are adjudicated on a case-by-case basis and that the agency doesn’t discuss them due to privacy concerns.
For some lawyers, the goal is to get an applicant placed in deportation so that they can then request “cancellation of removal” in immigration court. If a judge grants cancellation, the individual becomes eligible for legal permanent residency, or a green card.
“I believe there is a way to do this ethically, effectively and in the best interest of the client,” said Ava Benach, a Washington, D.C. attorney. “Some people have compelling circumstances, like a disabled U.S. citizen child.”
In early 2014 she filed an asylum application for Eufronia Alba and her husband, Edwin, undocumented Bolivians in Arlington, Va., whose U.S.-born son, Joshua, now 10 years old, has cerebral palsy.
Because the law requires that an asylum claim be filed within a year of an applicant’s arrival in the U.S., the asylum office referred the case to immigration court. Thus, Ms. Alba and her husband, who arrived in the U.S. in 2000, were in deportation proceedings—as their lawyer had anticipated.
Once in court, Ms. Benach requested cancellation of removal based on the extreme hardship that deporting the couple would create for their wheelchair-bound American child, who depends on them for every activity, such as bathing and feeding.
A judge last year indicated his intention to grant the request, and the couple is expected to get their green cards in early 2016.
Meanwhile, they received work permits and driver’s licenses.
“I go places without the fear I felt when I didn’t have papers,” said Ms. Alba, who has two other American children. Her husband, who works construction, secured a better-paying job, she said.
Still, some attorneys contend that strategy is fraught with risk.
“A strategy that works in one court doesn’t work in another,” said Mr. Rosenbluth, the North Carolina attorney.
He and others described clients who were unaware they could be deported after paying thousands of dollars to attorneys who promised them work permits obtained through an asylum application.
“Today, I see many hardworking people who have deportation orders because they fell for this trick years ago,” said Jocelyn Cortez, a Las Vegas immigration attorney.
Attorneys charge $3,000 to $10,000 per asylum case, which immigrants often pay in installments.
On a recent Tuesday, some immigrants in the waiting area of Taylor, Lee & Associates in Norcross, outside Atlanta, clutched forms on which they had scrawled “asilo” in Spanish, to describe their case.
Mr. Lee said his firm doesn’t submit frivolous applications, conducts background checks of clients and ensures applicants understand the process.
“Most of these cases probably won’t be granted,” said the attorney. Meanwhile, “at least you get a work permit during a waiting period. And you’re hoping there will be a change of immigration policy and priorities.”
http://www.wsj.com/articles/immigrants-use-asylum-applications-to-delay-possible-deportation-1481976003