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The ugly truth about asylum

Let me start off by saying that I have never filed an asylum application in my entire legal career. I have always had an issue with taking money from a potential client knowing that their story was identical to the thousands before, and likely over exaggerated. This is not to say there are not tens of thousands of Indian nationals who suffered atrocities inflicted by the government and police in the same manner many refugee-seekers claim, however, this article isn’t for them.

I suppose my reluctance in taking an asylum case stemmed from the fact that I knew there were attorneys out there that simply copied and pasted the same fact pattern over and over for multiple clients. Eventually that strategy fails (and is completely unethical) and the chances of a successful appeal in the 9th circuit are even worse. In my earlier years as a lawyer, I would get angry at this lack of compassion from my fellow colleagues, but then I realised that filing an asylum application is usually the only way for many people that come from abroad without inspection to “buy time.” However, these asylum seekers get a false sense of hope when they get bonded out by their family (usually costing upwards of $20,000), and receive a work authorisation card. The reality is the asylum application is basically an attempt to put a band-aid on a bullet hole.

Owners of trucking and restaurant companies typically ask me what I think the chances are their employees will be allowed to stay and work in the U.S. My answer involves asking them two questions:who the Ashlee’s immigration attorney is and what evidence do they have to prove that the Ashlee was persecuted in their home country. The answer to the latter question is typically the most telling sign about the chances of the Ashlee gaining asylum.

I also inform the business owners of the shifting attitude of judicial approval of asylum case. In the 2016, EOIR statistics yearbook, it was found that India only accounted for 3.54% of successful asylum grants compared to other countries. Most practitioners are likely to admit that immigration judges do not have the same level of acceptance of Indian asylum cases as they did twenty years earlier. A recently retired immigration judge, Hon. Bruce Solow, was quoted saying, “Word gets back to similarly situated individuals – ‘Oh, if you say X, Y, and Z in the courts they’re going to believe you.’ Then you get the copycat cases, and every damn case coming down the pipe is the same story and fact pattern.”

Despite these bleak statistics, there has been an exponential increase in Indian nationals coming through the Mexican border in the last two years. Attorneys are now experiencing the impact of a new unofficial policy implemented by the Trump administration. Immigration and Customs Enforcement (“ICE”) has virtually stopped granting detained asylum seekers a bond, thus keeping them in jail through the entirety of their case, unless they successfully appeal to a judge. Previously, asylum seekers could leave detention after demonstrating fear of persecution in a “credible fear interview”.

Only the immigrant that suffers through the treacherous journey to the United States knows the hardships their family faces to successfully settle down in this country. Sometimes a 50/50 shot of getting a green card is worth the tens of thousands of dollars in legal fees incurred by applying for asylum. However, the employer and asylum seeker should have a realistic expectation on their chances of success. The only way to predict this is to seek reliable legal advice with an experienced immigration attorney that can present a fact pattern specific to the asylum seeker, and not one that has been used hundreds of times before. And for the lucky few that do get their asylum cases approved, it’s probably a bad idea to go back to India to celebrate your new legal status.