Basic Procedural Manual For Asylum Representation Affirmatively And In R P
BASIC PROCEDURAL MANUALFOR ASYLUM REPRESENTATIONAFFIRMATIVELYAND IN REMOVAL PROCEEDINGSJuly 2018208 South LaSalle StreetSuite 1300Chicago, Illinois 60604Phone 312-660-1370Fax 312-660-1505www.immigrantjustice.org
TABLE OF CONTENTS***ACRONYMS AND TERMS. 4INFORMATION ON THE PRO BONO PROGRAM. 5THE NATIONAL IMMIGRANT JUSTICE CENTER .5NIJC’S CLIENTS .5WHAT PRO BONO ATTORNEYS CAN EXPECT FROM NIJC .6WHAT NIJC EXPECTS FROM PRO BONO PARTNERS .6OBTAINING A CASE .7FIRST STEPS .7THE BASICS OF ASYLUM LAW . 9BACKGROUND .9JURISDICTION OVER ASYLUM APPLICATIONS . 10LEGAL TEST FOR ASYLUM/REFUGEE PROTECTION . 10Legal Test For Well-Founded Fear . 11Definition of Persecution . 11Government Actor . 12The Nexus . 12The Five Protected Grounds for Asylum . 13Past Persecution . 16Internal Relocation . 16Future Fear Only Claims . 17ALTERNATIVES TO ASYLUM . 18WITHHOLDING OF REMOVAL . 18Legal Standard for Withholding of Removal . 18CONVENTION AGAINST TORTURE . 19Definition of Torture . 19CAT Standard of Proof . 20Procedure for Raising CAT Claims . 20VOLUNTARY DEPARTURE . 21Master Calendar Hearing . 21Conclusion of the Merits Hearing . 22BARS TO ELIGIBILTY FOR ASYLUM, WITHHOLDING AND CAT . 23THE ONE-YEAR FILING DEADLINE . 24THE TERRORISM BARS . 25FLOW CHART: STEPS IN THE ASYLUM PROCESS . 27THE ASYLUM PROCESS . 28DOCUMENTARY REQUIREMENTS . 28PREPARING THE ASYLUM CASE . 29Step One: Interviewing The Client . 29Step Two: Preparing the I-589 . 31Step Three: Drafting the Affidavit . 32National Immigrant Justice CenterJuly 20181
Step Four: Obtaining Witnesses . 32Step Five: Compiling Corroborative Evidence . 34Step Six: Preparing the Cover Letter or Pre-Hearing Brief . 36FILING THE APPLICATION AND PRESENTING THE CASE . 37The Affirmative Process . 37The Defensive Process . 39THE APPEAL TO THE BIA . 54FEDERAL COURT REVIEW . 55ADVISING THE CLIENT AFTER ASYLUM IS GRANTED . 56DERIVATIVE ASYLUM FOR SPOUSE AND CHILDREN . 56ELIGIBILITY FOR EMPLOYMENT AND A SOCIAL SECURITY NUMBER . 57PUBLIC BENEFITS . 58TAXES. 59RIGHT TO TRAVEL . 59LAWFUL PERMANENT RESIDENCE STATUS . 59CITIZENSHIP . 60SELECTIVE SERVICE REGISTRATION . 60ADDITIONAL INFORMATION . 61OBTAINING EMPLOYMENT AUTHORIZATION . 61Eligibility . 62When To File . 62What To File . 62Where to File. 63Renewals . 63Timeline for Adjudication. 64When Employment Authorization Terminates . 64FREEDOM OF INFORMATION ACT REQUESTS . 65ORR FILE REQUESTS . 65FORENSIC EXAMINATION OF ORIGINAL DOCUMENTS. 66CONTACT INFORMATION . 67IMPORTANT PHONE NUMBERS AND ADDRESSES . 68LEGAL RESOURCE MATERIALS . 69SOURCES FOR CASE PREPARATION . 69SOURCES FOR DOCUMENTATION . 69GLOSSARY OF IMMIGRATION TERMS. 70APPENDIX OF SAMPLE FORMS AND DOCUMENTS . 78National Immigrant Justice CenterJuly 20182
Please Note: This manual is a brief guide to asylum practice and does not purport todiscuss all aspects of immigration practice related to asylum proceedings. Additionalsources should be consulted when more complex questions regarding current law andprocedure arise. Many of these resources are referenced in this manual. 2018 Heartland Alliance for Human Needs & Human RightsNational Immigrant Justice CenterNational Immigrant Justice CenterJuly 20183
ACRONYMS AND ttorney GeneralAsylum OfficerBoard of Immigration AppealsImmigration and Customs EnforcementConvention Against TortureComprehensive Immigration ReformDeferred Action for Childhood ArrivalsDepartment of Homeland SecurityExecutive Office for Immigration ReviewFreedom of Information ActImmigration and Customs EnforcementIllegal Immigration Reform and Immigrant Responsibility ActImmigration JudgeImmigration and Nationality ActImmigration and Naturalization ServiceLawful Permanent ResidentNotice of Intent to DenyNotice to AppearSocial Security AdministrationTrial AttorneyTemporary Protected StatusTrafficking Victims Protection Reauthorization ActUnaccompanied Alien ChildUnited Nations High Commissioner for RefugeesUnited States CitizenUnited States Citizenship & Immigration ServicesViolence Against Women ActNational Immigrant Justice CenterJuly 20184
INFORMATION ON THE PRO BONO PROGRAM***The National Immigrant Justice CenterHeartland Alliance's National Immigrant Justice Center is a Chicago-based nongovernmentalorganization dedicated to ensuring human rights protections and access to justice for all immigrants,refugees and asylum-seekers through a unique combination of direct services, policy reform, impactlitigation and public education.NIJC’s asylum pro bono project was founded in 1985 and provides legal representation to lowincome non-citizens seeking asylum in the United States. The project is now one of the leading asylumrepresentation programs in the country, handling hundreds of affirmative and defensive asylum casesevery year before the Chicago Asylum Office, the Chicago Immigration Court, the Circuit Courts ofAppeals, and the Supreme Court.NIJC’s pro bono program relies almost entirely on volunteer attorneys, the great majority ofwhom have no previous experience in immigration or asylum law. NIJC assists its pro bono partners byproviding training, materials, support services, and consultations. Largely as a result of the efforts of itspro bono partners, NIJC has helped thousands of asylum-seekers from more than 60 nations begin newlives in the United States. NIJC’s asylum project has become a national model for organizationsproviding immigration legal services.For more information visit www.immigrantjustice.org.NIJC’s ClientsNIJC’s asylum clients are men, women and children who have fled civil wars, violence, andpersecution around the globe. Many have survived state-sponsored torture and other persecution. Otherclients have been subjected to severe human rights abuses by non-state agents such as guerilla groups andprivate citizens whom the government in the country of origin is unwilling or unable to control. ThroughNIJC’s asylum project, pro bono attorneys have saved the lives of clients fearing political, racial, ethnicand religious persecution, gender-based violence, and abuse and discrimination based on sexualorientation.NIJC provides representation to asylum-seekers in affirmative and defensive proceedings. Manyof NIJC’s clients are already in removal proceedings at the immigration court - the last step before theUnited States government will deport them to their countries or origin. In these adversarial proceedingsbefore an immigration judge, an individual who has an attorney has a significantly better chance ofwinning asylum than an individual who is pro se.National Immigrant Justice CenterJuly 20185
What Pro Bono Attorneys Can Expect From NIJCNIJC understands the majority of its pro bono attorneys have limited immigration law experience.NIJC’s pro bono partners report that asylum cases are the most interesting, challenging, and rewardingcases of their careers. Attorneys who accept an NIJC case for pro bono representation can expect thatNIJC will provide the support and assistance necessary to capably represent NIJC clients.NIJC provides pro bono attorneys with: basic asylum trainings offered about once every three months. NIJC offers advanced asylumtrainings on emerging issues in asylum law several times a year. NIJC may also provide specializedtraining sessions upon request. NIJC trainings are typically recorded as webinars and archived. Theyare available through NIJC’s web page: http://immigrantjustice.org/training-webcasts. information regarding immigration law, practice, and procedure; sample applications, motions, andpleadings; documentation; and other case resources. consultation with experienced NIJC practitioners regarding case-related questions, theories, and trialstrategies. NIJC attorneys remain current on immigration law, policy, and practice, and frequentlyserve as faculty at local and national immigration law trainings. professional liability insurance. NIJC carries comprehensive professional liability insurance, whichspecifically covers its pro bono attorneys. involvement in ground-breaking legal issues and opportunity to interact with clients from differentcultural, ethnic, religious, and socio-economic backgrounds. unique litigation experience, with opportunities to represent clients before a federal agency or theU.S. circuit courts of appeals. exceptional legal experience that will enhance a pro bono attorney’s career development.What NIJC Expects from Pro Bono PartnersNIJC clients’ lives are quite literally at stake in asylum proceedings. For that reason, NIJC treatsevery case very seriously asks that pro bono partners to do the same.NIJC asks that pro bono attorneys agree: to attend the next available NIJC training, if the attorney has not already attended a training. to provide representation on a case for its duration. This means through completion of theadjudication on the merits of the claim, and if necessary, at the appellate level before the Board ofImmigration Appeals (BIA). When federal court appeals become necessary, NIJC asks that therepresenting firm consider remaining involved.National Immigrant Justice CenterJuly 20186
to transfer representation of the case to another attorney in the partner firm if the pro bono attorney iscompelled to withdraw representation for any reason other than the emergence of a conflict of interestor a termination of representation due to client misconduct. NIJC is unable to absorb pro bono casesin-house, except in very limited circumstances. to inform NIJC of any transfer of representation within the firm or of the addition of attorneys to thelegal team assigned to the case. to keep NIJC informed of the status of the case. NIJC maintains an agreement with every clientreferred for pro bono representation and remains “of counsel.” Many federal asylee benefits are onlyavailable for a very short period of time after the asylum approval, so it is critical that pro bonopartners inform NIJC of case adjudications immediately. to contact NIJC if the client appears eligible for another immigration benefit. Pro bono attorneysshould understand that applying for other immigration benefits may impact the client’s case. to contact NIJC if the client requests assistance regarding other legal matters. NIJC’s involvement inthe case is limited to asylum matters. NIJC is unable to provide technical support on other legalmatters. If a client becomes eligible for another immigration benefit, NIJC may execute asupplementary retainer with the client to assist in seeking that benefit. to contact NIJC before speaking with the media or any members of Congress about the case. NIJC isactively involved in immigration policy and advocacy efforts at the state and national levels, and withlocal and national media. Coordinating with NIJC will ensure that any advocacy efforts achieve thebest possible result for the client.Obtaining a CaseNIJC circulates a list of descriptions of asylum cases in need or representation via email everymonth. To obtain a case from this list, prospective pro bono partners should contact Anna Sears, NIJC’sAsylum and Pro Bono Project Supervisor at (312) 660-1307 or ansears@heartlandalliance.org. Once apro bono attorney has accepted an asylum case for representation, NIJC will send a copy of the client’sfile and contact information to the attorney.Because asylum cases are very resource and labor intensive, NIJC typically assigns these casesonly to attorneys affiliated with law firms. Solo practitioners wishing to volunteer with NIJC shouldcontact Anna Sears to learn about other opportunities.First StepsNIJC recommends pro bono attorneys take the following steps upon receipt of a case:Contact the client. NIJC advises the client when her case has been assigned to a pro bono attorney.Often, clients have waited months for assignment to an attorney and are eager to hear from their newlawyers.National Immigrant Justice CenterJuly 20187
Review the file in full. NIJC attempts to obtain relevant documentation from clients prior to caseacceptance and will share these documents when assigning a case to a pro bono attorney. Upon review ofthe file, pro bono attorneys will likely identify additional documents that would be useful in supportingthe asylum claim and should begin working with the client to obtain these documents.Review the Notice to Appear. If the client’s case is before the immigration court, the judge will requirea response to the charging document known as the Notice to Appear (NTA) at the initial hearing.Carefully review the allegations and charges on the NTA with the client to ensure accuracy. Errors on theNTA can be extremely detrimental and should be discussed with the government trial attorney and thejudge at the hearing.Review any pre-existing asylum applications. If the client applied affirmatively with the asylum officeand was referred to the immigration court, be sure to review the existing application carefully with theclient. Often, language barriers and the absence of counsel at the affirmative stage result in the inclusionof erroneous information in the first application. The immigration court record will contain anypreviously filed asylum application and errors in the application may generate problems in the courtadjudication. Minor corrections can be made to the application in the form of written or oralamendments. If the original application contains significant errors, the pro bono attorney may wish torequest leave from the court to file a superseding application. Bear in mind that any inconsistentinformation contained in a previous application will need to be explained to the court and may beincluded in the judge’s credibility assessment.Submit a FOIA request to obtain the client’s full immigration file and, if applicable, an ORRrequest to obtain an unaccompanied child client’s shelter records. If the client was referred to thecourt from the asylum office, was subject to a credible fear determination upon entry to the United Statesor has any time applied for any immigration benefits or given statements to immigration officials, the probono attorney should request a copy of the client’s government immigration file through the Freedom ofInformation Act (FOIA). The response to a FOIA request may reveal documents in the government filethat could be used for impeachment purposes during the client’s trial. FOIA requests from clients inremoval proceedings receive expedited treatment. For clients not in removal proceedings, a response maytake a year or more. Attorneys representing unaccompanied immigrant children should also file an Officeof Refugee Resettlement (ORR) file request to obtain the records from the child’s stay in an ORR shelter.See the “Additional Information” section of this manual for FOIA and ORR file request instructions.Review the Court Practice Manuals. If the client’s case is before the immigration court, theImmigration Court Practice Manual, available at www.usdoj.gov/eoir, describes the procedures andrequirements for immigration court practice. The Practice Manual is binding on all parties who appearbefore the immigration court, unless the immigration judge directs otherwise in a particular case. If aclient’s case is before the Board of Immigration Appeals, review the BIA Practice Manual, also availableat www.usdoj.gov/eoir.File an Appearance and Register with EOIR. If the client’s case is before the immigration court,register with the Executive Office for Immigration Review (EOIR) and file an E-28 appearance form withthe Court and the Immigration and Customs Enforcement (ICE) Office of the Chief Counsel as soon aspossible. Since June 10, 2013, all attorneys practicing before EOIR (which includes the immigrationcourts and the Board of Immigration Appeals) must register with EOIR. Registration includes both anonline and in-person component. Attorneys with cases currently pending before the Court who have notyet completed the registration process must do so immediately.National Immigrant Justice CenterJuly 20188
THE BASICS OF ASYLUM LAW***BackgroundFederal law provides that any individuals who have suffered or fear persecution in their homecountries based on their race, religion, nationality, political opinion or social group can apply for asylumin the United States. This right to seek protection is set forth in the 1951 United Nations ConventionRelating to the Status of Refugees and implemented in the 1967 United Nations Protocol Relating to theStatus of Refugees. The U.S. Congress codified refugee and asylee protection in 1980 through theRefugee Act.To qualify for asylum, the applicant must be physically present in the United States. Asylum maybe granted to an applicant who establishes past persecution or a well-founded fear of future persecution inthe country of origin on account of the applicant’s race, religion, nationality, political opinion, ormembership in a particular social group. The persecution must be inflicted by the government of thecountry of origin or an entity the government is unwilling or unable to control. Additional factors, suchas the ability to relocate within the country of origin or firm resettlement in another country, may makeasylum nonviable. Asylum is a discretionary benefit. In exercising discretion, the adjudicator can takeinto account negative factors, including violations of immigration law or criminal law.A grant of asylum conveys significant benefits to the recipient. Unless an asylee commits aserious crime or otherwise violates her status, she cannot be removed from the United States unless thegovernment can show that there has been a “fundamental change in circumstances [in the home country]relating to the original claim ” such that she may no longer be in danger upon return. 8 C.F.R. §208.24 1. An asylee is authorized to work and may apply to adjust status and obtain lawful permanentresidence (LPR) status one year after the grant of asylum. Further, an asylee is able to petition for andprovide asylee status to her spouse and any unmarried children who were under the age of 21 at the timethe asylum application was received by the government. These family petitions must be filed within twoyears of the grant of asylum.The Department of Homeland Security (DHS), through U.S. Citizenship & Immigration Services(USCIS), adjudicates affirmative requests for asylum. The Department of Justice, through the ExecutiveOffice for Immigration Review (EOIR) holds jurisdiction over asylum applications pending in removalproceedings.1The asylum regulations are the same for applications before the asylum office and the immigration court, but arefound in separate sections of the CFR. Asylum regulations relating to application before USCIS/the Asylum Officeare found at 8 C.F.R. § 208, while the regulations relating to asylum applications before the immigration court arefound at 8 C.F.R. § 1208. For simplicity’s sake, this manual will refer to the Department of Homeland Securityregulations at 8 C.F.R. § 208.National Immigrant Justice CenterJuly 20189
AGENCIES INVOLVED IN THE ASYLUM PROCESSDepartment of Homeland Security (DHS) United States Citizenship and ImmigrationServices (USCIS) – which houses theAsylum Office (AO) Immigration and Customs Enforcement(ICE) – which houses the Office of ChiefCounsel (OCC) Customs and Border Patrol (CBP)Department of Justice (DOJ) Executive Office for ImmigrationReview (EOIR) Board of Immigration Appeals (BIA) Office of Immigration Litigation (OIL)Jurisdiction Over Asylum ApplicationsGenerally, jurisdiction over an asylum application is determined by whether or not the applicantis in removal proceedings. 2 An asylum-seeker who is not in removal proceedings applies for asylumaffirmatively with the USCIS asylum office regardless of whether she entered the United States withpermission or remains in lawful status. If USCIS declines to approve the asylum application and theapplicant is not in some form of lawful immigration status, the application is referred to the immigrationcourt and removal proceedings commence. At this point, jurisdiction over the asylum application shifts tothe immigration court.If an individual is arrested by the DHS or otherwise placed in removal proceedings (e.g. uponreferral from USCIS), she must apply for asylum defensively with the immigration court. There theasylum application serves as a defense against removal and the court has exclusive jurisdiction.Legal Test for Asylum/Refugee ProtectionThe Immigration and Nationality Act (INA) sets forth the legal test for asylum eligibility. If anasylum applicant meets the definition of a refugee, the application may be granted. A refugee is defined as:Any person who is outside any country of such person’s nationality or, in the case of aperson having no nationality, is outside any country in which such person last habituallyresided, and who is unable or unwilling to return to, and is unable or unwilling to availhimself or herself of the protection of, that country because of persecuti
National Immigrant Justice Center July 2018 6. What Pro Bono Attorneys Can Expect From NIJC . NIJC understands the majority of its pro bono attorneys have limited immigration law experience. NIJC's pro bono partners report that asylum cases are the most interesting, challenging, and rewarding cases of their careers. Attorneys who accept an NIJC case for pro bono representation can expect that
This manual provides information on how to process an affirmative asylum application within an Asylum Office. Unless specifically indicated, an Asylum Office Director determines which personnel (e.g., Asylum Officer, Asylum Clerk) perform certain procedures outlined in this manual. 1. Manual Structure The manual is divided into five (5) sections.
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