Affirmative Application Process

Transcription

1 American Gateways would like to acknowledge Immigration Equality and the National Immigrant Justice Center for the excellent manual on LGBT asylum they have created. With their permission, we have borrowed and adapted portions of their manual. Affirmative Application Process Contents Understanding and Explaining the Risks of Affirmative Filing... 2 When to File... 2 Assembling the Application Packet... 3 Mailing to USCIS... 3 Receipt Notice, Biometrics Appointment, and Interview Notice... 4 Preparing for the Asylum Interview... 4 Preparing a Timeline... 5 The Asylum Interview Logistics... 5 Timeliness and Interview Location... 5 Attire... 6 Interpretation... 6 Rescheduling the Interview... 7 Requesting More than One Attorney to Attend the Interview... 7 Requesting an Officer of a Particular Gender... 8 The Asylum Interview... 8 What to Bring to the Interview... 8 The Asylum Officer s Approach... 9 Questions at the Interview... 9 The Decision Recommended Approval Notice of Intent to Deny Referral to Court

2 Understanding and Explaining the Risks of Affirmative Filing An applicant can file for asylum either affirmatively or as a defense to removal proceedings. When an applicant is filing affirmatively, one of the primary roles of an attorney is to help the applicant understand the relative strengths and weaknesses of her case and help her make a decision about whether or not to apply for asylum. Once the applicant is in removal proceedings, the potential risk of applying affirmatively being removed (deported) already exists, so as long as the asylum claim is colorable there generally is no reason not to apply. As discussed elsewhere when an applicant files for asylum he generally files simultaneously for withholding of removal and for relief under the Convention against Torture. The latter two forms of relief can only be granted by an Immigration Judge, however. When to File Asylum applicants must file the asylum application within the first year of arrival in the United States. Often asylum applicants don t seek counsel until they are close to the one year filing deadline and an attorney is left scrambling to put the application together before the anniversary of the applicant s last entry. In some cases, however, an attorney and client have some strategy decisions to make about when to file for asylum. If the applicant is in lawful status when she comes to see you, you may have to decide whether it s best to apply quickly or to wait until the applicant is out of status. If the applicant is still in lawful status at the time the Asylum Office decision is issued, she will either received a recommended approval or a Notice of Intent to Deny. If the application is denied by the Asylum Office, there is no appeal of the denial. Many asylum applicants feel more comfortable filing for asylum while they are still in lawful status because the idea of possibly being placed in removal proceedings is terrifying. It is important that the asylum seeker understands, however, that even if she is in lawful status, (for example, as a student who is still enrolled in school), at the time the application is denied by the Asylum Office, her immigration possibilities in the United States will be affected by the application. Applicants for many non-immigrant visas (most notably tourist and student visas) most overcome a presumption that their intent is to remain in the United States permanently. Thus, if the applicant loses her asylum case and returns to her country before the expiration of her lawful status here, she will likely find it impossible to obtain another visa to the United States. 2

3 Assembling the Application Packet In addition to the I-589 application form itself, the asylum application packet generally includes a declaration by the applicant, client specific corroborating evidence about the claim, country conditions information, and a legal brief. (See the Filing Checklist in the Getting Started folder on TexasLawyersHelp.org) Technically, Form I-589 is the only document that needs to be submitted to initiate the application process. Thus, if an applicant is filing very close to the one year filing deadline, or if the reasonable period of time after a filing deadline exception is in danger of passing, it is possible to file only the I-589 and then bring the other documentation in person to the asylum interview. The attorney must file a Notice of Appearance, Form G-28 (preferably on blue paper.) Staple a passport style photo of applicant to the original form I-589 in the indicated square on page 9. Staple a passport style photo of the applicant s derivative family member on the copy of the application for that family member (see form I-589 Instructions for more detail). Mailing to USCIS The affirmative asylum process is initiated by sending the asylum application (Form I-589) to the USCIS Service Center that has jurisdiction over the region in which the applicant resides. Mail the original Form I-589 and 2 copies (3 packets altogether) of the entire application packet (plus one additional copy for each derivative child or spouse in the United States included in the application) via USPS Certified Mail or FedEx. It is important to have a tracking number for proof of timely filing: USPS Certified Mail: USCIS Texas Service Center Attn: Asylum P.O. Box Mesquite, TX FedEx: USCIS Texas Service Center Attn: Asylum 4141 N. St. Augustine Rd. Dallas, TX

4 Receipt Notice, Biometrics Appointment, and Interview Notice About two weeks after the I-589 has been filed, the Houston Asylum Office will send you a receipt notice. Save this receipt notice in your file; it is important proof of timely filing. Then, after about two more weeks, you will receive a Biometrics Appointment Notice. Send your client to have her biometrics taken at the indicated appointment. It is not necessary for the attorney to accompany the applicant to her Biometrics appointment. Finally, after about another week, you will receive the Asylum Interview Notice with the date and time of your interview. Preparing for the Asylum Interview The most important preparation you will do for the interview is working with your client to prepare the best possible asylum declaration. This will focus the issues in the case and help the client to understand which experiences and incidents are most relevant to her claim. You should go through a mock interview with the client. If at all possible, have another attorney from your office or your mentor attorney play the role of the Asylum Officer. This is good practice for the client to try testifying in front of someone who she doesn t know and will also provide a fresh listener for the case who can tell you if any aspects of the testimony are unclear or do not sound credible. It s important that you counsel your client to listen closely to each question and be responsive to the question asked. Tell your client that even though it s natural to try to suppress painful memories and to not want to relive them, it s crucial to her case that her emotions and fear come through at the interview. If the client feels like crying, she should not suppress that at the interview. It is a good idea to ask your client if there is any question that she fears the Officer may ask her. It is better to address your client s fears and formulate a strategy for dealing with them than to allow your client to feel fearful about a particular question. If there are any thorny issues in your case, be sure to prepare your client completely about the best way to address these issues. 4

5 You should tell your client to re-read her I-589 and declaration, paying particular attention to dates. You can also prepare a timeline (See next section) and give that to your client as a document where all relevant dates and incidents are in one place for easy reference. Preparing a Timeline Sometimes after preparing a lengthy declaration, the applicant s story can feel overwhelming to the attorney and the client. It can be very helpful to boil the story down to a single page timeline. The timeline should include all essential information in chronological order, with dates, that you want to be sure your client testifies about. You can have the timeline open in your file during the interview so that if the Officer asks questions out of chronological order, you can track those important incidents that your client has not testified about for your own follow up questions at the end of the interview. It can also be helpful to give the client a copy of this timeline as a final preparation tool before the interview. Once the essence of the case can be boiled down to a single page or less, the entire case feels much more manageable in size. The Asylum Interview Logistics Timeliness and Interview Location You must be on time for your interview. If an applicant arrives more than thirty minutes late, the interview may be rescheduled or the application may be denied. You need to make a plan with the applicant about how she is going to get to the interview and, if possible, travel to the interview together. Despite the strict rules about being on time for the interview, generally an applicant will wait an hour or two after checking in at the Asylum Office before being interviewed. The day of the interview quickly turns into a long day, so it is important that everyone attending eat a good breakfast (no food is allowed in the waiting room) so that they remain alert for the interview. It s also helpful to recommend that the applicant bring a magazine for the long wait. The Asylum Office in Houston is located at: Imperial Valley Drive, Suite 200, Houston, TX Give yourself plenty of time for travel. 5

6 Attire The applicant should dress comfortably but respectfully for the interview. The applicant does not have to wear a suit but should not wear jeans or a t-shirt. The applicant should dress in a manner that is comfortable to her identity. The interview process will be stressful enough for the applicant without the applicant feeling like he or she has to pull off some sort of a disguise. Interpretation Asylum Offices do not provide interpreters for asylum interviews. Thus if the applicant is not proficient in English, she will have to supply her own interpreter. There is no requirement that the interpreter be a professional interpreter. The interpreter will, however, have to bring an identification document (such as a passport or driver s license) and must be in lawful immigration status. The Asylum Office will have a professional interpreter on speaker phone checking your interpreter s interpretation. Make sure your interpreter reviews key vocabulary that will come up in your client s case. It is also important that the interpreter review the oath (Form I- 589, pg. 9), which he/she will be required to interpret. If your interpreter is not sufficiently prepared or skilled, the Asylum Officer may stop the interview and reschedule you to come back at a later date with a different interpreter. When the applicant uses an interpreter at the interview, it is important that the interpreter be familiar with the applicant s story. It is generally helpful if the interpreter can read the applicant s declaration in advance of the interview. The interpreter should also accompany the applicant to interview preparation sessions with the attorney so that both the interpreter and applicant feel comfortable that they understand one another. If the applicant is proficient but not entirely fluent in English, it is important to discuss with her before the interview whether or not he requires an interpreter. Many applicants are so nervous about the interview that even though they speak English well they feel more comfortable having an interpreter present. For some applicants too, it is easier to speak about events that happened in their own countries in the language in which they experienced the events. On the other hand, even with the best interpreter, there is always some meaning that is lost in translation. It will also be more difficult for the Asylum Officer to experience the emotions of the applicant s words as he describes past incidents of mistreatment if the Officer is listening to the interpreter rather than the 6

7 applicant. Deciding whether or not to use an interpreter is therefore an individualized decision which you should fully discuss with the applicant, and with your mentor attorney if needed. Many English-proficient applicants would like to have an interpreter present to fall back upon if they don t understand a particular question. Different Asylum Officers handle this request differently. Some Officers will allow this, but the Houston Office will require the applicant to conduct the entire interview in English or in the applicant s native tongue but will not permit the applicant to go back and forth. Rescheduling the Interview It is generally best not to reschedule an asylum interview unless it is absolutely necessary because if the request is not granted the applicant s application could be denied and she could be placed in removal proceedings without having an interview with an Asylum Officer. But, if necessary, it is possible to postpone the asylum interview for good cause. If an attorney has recently taken on a case, has a scheduling conflict, or needs more time to prepare, she can request that the interview be postponed. The best way to do this is to send a letter to both the local Asylum Office and the Service Center via overnight courier and to fax a copy of the letter to the local Asylum Office. If there is no response, it is a good idea to call the local Asylum Office and speak with a supervisor as well. Generally, the rescheduling request will be granted, but you will not receive notice until a couple of days before the scheduled interview. Because asylum interviews are scheduled so quickly, you will probably only be given a short postponement (3-6 weeks) unless there is a good reason for a longer postponement, for example if your client is in the hospital. Requesting More than One Attorney to Attend the Interview Most Asylum Offices only want one attorney present for the asylum interview. If you have been working on the case in a pro bono team, you may want more than one team member to attend. It may be possible for two attorneys to attend the interview, but it is very unlikely the Asylum Office will allow more than two attorneys to be present. The reason for this is partly because the interviews are conducted in the Officers offices and therefore space is limited. Also, because the interview is non-adversarial the Officer probably doesn t want to feel overrun by a large team of attorneys. 7

8 If you want a second attorney to attend the interview, you should write a letter to the Asylum Office director at least a week before the scheduled interview date. You send the letter via overnight courier service and also fax it. If your client is fluent in English and does not need an interpreter, you should state this in the letter, since that frees up a chair in the Officer s office. You may hear from the Asylum Office before the interview date granting your request. If you have not received a response by the interview date, bring copies of the letter with you to the Asylum Office and if the Officer does not want to allow the second attorney in, show her the letters, and she may relent. Requesting an Officer of a Particular Gender Most Asylum Offices will allow an applicant to request an Officer of a particular gender. The offices will try to accommodate such requests if possible. Many asylum applicants have suffered sexual abuse or rape, and it may be much more difficult for the applicant to recount the details of that abuse to a government official of the same gender as the persecutor. Applicants who come from cultures with strict gender roles and segregation may find it very difficult to discuss certain issues with a member of the opposite sex. Many applicants will feel equally comfortable (or uncomfortable) telling their stories to anyone of either gender, but it is always a good idea to discuss with the applicant the possibility of requesting an Officer of a particular gender. The Asylum Interview What to Bring to the Interview The Asylum Interview Notice Attorney s ID Applicant and all family members in the U.S. included as derivatives on asylum application An interpreter, if needed, and interpreter s ID Attorney copy of the entire asylum application packet submitted Any additional evidence that was not submitted before Any original documents the applicant has that were submitted as copies with the asylum application packet (ask the Officer if she wants to inspect the original documents) Any envelopes sent from the applicant s home country that her documents arrived in (ask the Officer if she wants to inspect the envelopes) 8

9 The Asylum Officer s Approach Asylum Officers have a great deal of discretion in how they conduct the asylum interview. Some Officers make a point of being warm and welcoming; others immediately lay down rules and make the interview as business-like as possible. It is impossible to know before the interview exactly what the process will be. Asylum Officers do not receive the asylum applications until the morning of the interview, after the applicant has checked in. Many Officers will take time before calling the applicant in to review the file (hence the long wait in the waiting room). Other Officers will barely skim the file before calling in the applicant, figuring that they will first get the oral testimony and then go back and review the file. In any event, you should not expect that the Officer will have much familiarity with the application. Most Officers will conduct the vast majority of the interview themselves, leaving time at the end for the attorney to ask follow up questions and/or make a summation of the case. On rare occasions an Officer will allow a representative to question the applicant directly as if the case were in court. Some Officers will allow you to rephrase questions which the applicant doesn t understand or to draw the Officer s attention to relevant documents in the file. Other Officers do not allow the attorney to speak at all until the conclusion of the interview. There is no way to know in advance what style the Officer will have, so it is important for you to be flexible. You can try to participate somewhat in the interview until you are told directly not to do so. If you have taken the case pro bono, you should let the Officer know this. Asylum Officers appreciate the work that pro bono lawyers do, and will also be more likely to fully explain the process if they know that the attorney is not a full-time immigration attorney. If the Officer asks questions which are inappropriate or assumes an abusive or discriminatory demeanor, you should tell the Officer that her behavior or question is inappropriate. If the Officer continues with inappropriate questioning, you should ask to stop the interview and speak with the Officer s supervisor. Sometimes supervisors will sit in on interviews, other times the interview can be reassigned to another Officer. Questions at the Interview Different Officers have different styles of questioning. Many Officers begin by going through the biographical background information on the application. If you spot any mistakes on the I-589, this 9

10 is the time to correct them with the Officer. The, the Officer will move onto the substantive story of the case. Some Officers will read the essay questions on the I-589 word for word. Other Officers will follow along the declaration and ask the applicant to recount problems she had chronologically. Often the Officer s questioning will result in the applicant telling her story out of chronological order. It is important for you to listen carefully and to ask follow up questions about any significant incidents which the applicant did not testify about. Creating a timeline before the interview can be very helpful in tracking the applicant s answers. If there is a one year filing deadline issue or any other thorny issues in the case, it is important to prepare the applicant well for discussing these issues. Since the attorney will generally not be guiding the applicant through direct examination, it is crucial that the applicant be able to articulate on her own why she waited two years to file for asylum or once shoplifted a pair of pants. There are generally no big surprises at the interview. The applicant should be prepared to testify in detail about everything that is in her asylum application. Of course, the most important part of the testimony concerns the persecution the applicant suffered in the past and/or fears in the future. It is crucial to the claim that the applicant s emotions come through during this testimony. After weeks or months of preparing the declaration with the representative, the applicant s answers to questions about past abuses may begin to sound stale. You should instruct the applicant about the importance of listening closely to the Officer s questions and really picturing herself back in her home country, reliving the abuses that she suffered there. Difficult as this may be for applicants, if they can testify compellingly at the interview, this may be the last time that they have to retell the story of their persecution. Most asylum interviews last between one and two hours. If an interpreter is needed, the interviews tend to be closer to two hours. The Asylum Officer will have to review her decision with her supervisor before issuing it. Thus, Officers often focus on areas of questioning which they think their supervisor will raise. If you see that there is a particular issue of concern to the Officer, for example, multiple return visits to the country of persecution, it can be very helpful to the case for you to sum up and offer an explanation which the Officer can then give to her supervisor. Likewise, if there s a crucial piece of evidence that the Officer wants that has not yet been supplied (like a medical record from the applicant s home country), you can FedEx this document, the sooner the better, to the Asylum Officer during the two week period before the decision is issued. 10

11 The Decision Two weeks after the interview, the applicant must return to the Asylum Office to pick up the decision. The Asylum Office will notify you at the interview when the applicant must return. There is no substantive exchange with the Officer on this date; the applicant receives a piece of paper at the check in window. There is no need for the attorney to accompany the applicant. In some situations, the case must be referred to Asylum Headquarters before the decision is issued. Sometimes, seemingly for no reason, a decision is not ready after two weeks. At times it can take several months to receive a decision. This lengthy delay does not seem to be an indicator that the case will be denied or approved, and, other than writing follow up letters to the Asylum Office, there is not much an attorney can do to speed the decision-making process. Recommended Approval If all goes well, the applicant will receive a brief letter explaining that the Asylum Office has recommended approval of the application. Congratulations! You ve won your case. This is a recommended approval, rather than a final approval, pending necessary background checks to confirm the applicant s identity and that the applicant has no criminal or terrorist background which would preclude a grant to asylum. Once the applicant receives recommended approval, CIS will issue an Employment Authorization Document and send it to the applicant in the mail. Then, the applicant will wait a number of months for the final decision to be sent, along with an asylee I- 94. When the asylee receives the final approval, she can work lawfully without having to have an employment authorization document. She can also obtain an unrestricted social security number. One year after the final approval date, the applicant can apply for legal permanent residence. Notice of Intent to Deny If the applicant is still in lawful status at the time the Asylum Office issues the decision, and if the Asylum Office does not believe that the applicant has met her burden of proving jer case for asylum, the applicant will receive a Notice of Intent to Deny ( NOID ). The NOID is a detailed letter which explains the Asylum Office s reasoning for denying the application. The applicant has 16 days in which to respond to the NOID in the hope of overturning the decision. You should always submit a response to the NOID. As with other aspects of the asylum interview, the rules of response are flexible. You can write a brief explaining why, based on the record submitted and the testimony, the conclusions the Officer drew were incorrect. You can also submit 11

12 additional evidence. For example, if the NOID states that there was not sufficient evidence of objectively reasonable fear because the country conditions information is mixed, it can be crucial to submit an expert affidavit that directly addresses the specific fear that the applicant has. It is possible to obtain more time to respond to a NOID if there is a good reason to do so. The attorney can write a letter to the Asylum Officer requesting additional time, for example, thirty days, to respond. You should follow up by calling the Asylum Officer to make sure that the request was granted. If a response is not timely submitted to the NOID, the decision becomes final. There is no set time frame for when the Asylum Officer will respond to the NOID rebuttal. It may take several weeks or longer. The Officer can change her mind and recommend approval or issue a final denial. If the case is denied, there is no appeal from the denial. The applicant can, however, reapply for asylum in the future after falling out of legal status and then avail herself of the appeal procedure discussed below. The Asylum Office does not have jurisdiction to decide withholding or CAT claims. These claims can only be heard in Immigration Court. Referral to Court If the asylum application is not approved by the Asylum Office and the applicant is not in lawful status, she will be served with a Referral letter which will very briefly outline the reasons that the case was not approved, and a Notice to Appear ( NTA ) in Immigration Court. The NTA is the charging document which initiates removal proceedings (formerly known as deportation proceedings ) against the applicant. The NTA will contain charges against the applicant as well as a date and time to appear in Immigration Court. Failure to appear in Immigration Court will result in an in absentia removal order being issued against the applicant. The applicant can renew his applicant for asylum before the Immigration Judge. Being referred to Immigration Court does not stop time from accruing towards the 180 days needed to be eligible for an Employment Authorization Document. This Guide is intended to provide information to volunteer attorneys. It is not intended as legal advice. Asylum seekers should speak with a qualified attorney before applying. 12