Political Asylum for Detainees
APPLY FOR ASYLUM?
If you crossed the border and got detained by deportation officers asylum is the only immigration benefit available that might stop your deportation. There is no other form of application that you can file to stop deportation – only asylum!
To win asylum case you must show that the government of your country was harassing you , targeting you for persecution or torturing you based on your political views/membership in opposition movement or membership in a social group that’s been a victim of government persecution like gays or indigenous minorities OR membership in persecuted religious group.
While the majority of undocumented immigrants from El Salvador, Guatemala, Honduras or Mexico can show that they’ve been victims of some sort of violence in their countries, they are usually unable to prove that such violence was inflicted by the government of their country based on their political views, social group or religion membership. Most of the applicants from El Salvador, Guatemala, Mexico , Honduras and other Latin countries claim to be victims of violent crime and extortion by gangs , or victims of domestic violence which cannot help them win asylum cases. In other words there is no asylum for victims of crime but only for victims of political persecution.
However , asylum case still remains the only case to apply for to temporarily stop deportation so they have no choice other than seek asylum.
HOW CAN I STOP DEPORTATION BY APPLYING FOR ASYLUM DESPITE ABUSE OF MY RIGHTS BY DEPORTATION OFFICERS?
First of all its important not to sign your own deportation ! Unfortunately there are many bad deportation officers that abuse the rights of detainees by intimidating them into singing their deportation.
Typically, deportation officers tell the detainee that if he/she doesn’t sign paper saying they want to go back to their country voluntarily, they will wait for their next cita for many months in jail and that hiring an immigration lawyer is a waste of money because they will be deported anyway. Its important for detainees to know that they have a right to hire an immigration attorney and that they have a right not to obey the deportation officers abusive instructions. Detainee should always insist on getting his day in immigration court and see immigration judge.
HOW DOES CREDIBLE INTERVIEW PROCESS WORK?
In what way by deportation officers abuse detainee’s rights during the process? How can detainee resist the abuse by deportation officers?
There is a process called “credible fear proceedings” for undocumented immigrants held in immigration detention after crossing the border. Before a detainee is released on bail to continue with his or her asylum case with immigration court, detainee must go through an interview in detention to explain why he or she is afraid to go back to their country. This is the first step to seek asylum in the U.S. Once detainee asked for credible fear interview , deportation process freezes until credible fear interview results are obtained.
At this point its important to consult with a lawyer to learn about asylum rules and eligibility requirements. Even if immigrant’s attorney successfully requested a credible fear interview and after credible fear interview is scheduled some abusive deportation officers still keep trying to sabotage the interview process by calling the attorney’s office without prior notice for attorney to be immediately available to be telephonically present right away.
In many cases attorney could be in court and not immediately available – since no prior notice of this credible interview was given by deportation officer on purpose. When attorney is not available officer tells detainee : “See - your lawyer is not available – I told you lawyers are only there to get money from you and are not helping you. Do you still want to be represented by your bad lawyer who is not now available ? if yes, I will schedule your interview in 3 weeks and you will sit in this deportation jail for 3 weeks more ! “ Desperate detainee who doesn’t understand the process often agrees to do the interview without lawyer being present telephonically and gives his testimony right then and there to avoid spending more time in deportation jail. This is just another example of abuse by some deportation officers who are sabotaging detainee’s rights!
On top of these problems , when immigration attorney tries to communicate with deportation officers, they very often ignore attorney’s phone calls, fail to return voicemails, ignore faxes being sent to them by lawyers and keep telling detainees that they “don’t have a lawyer” even though it’s a lie. Sometimes this happens when immigration officer refuses to accept G 28 form (representation by an attorney form) from the attorney without an original signature of the detainee when its obvious that such signature can not be obtained – this is another way for the officersto sabotage legal representation of the detainee. It should be sufficient to get a signature from the relatives hiring an attorney when its obvious that detainee authorizes such representation – however some abusive officers insist on the “original” signature which means that the form must be mailed to the detention center to the detainee and detainee must sign that form and return it. In the meantime officers get the detainee ready for deportation , get him /her to see a consul from their home country and once they saw a consul it takes only a couple of days to put them on the plane!
Based on all this its important that detainee and his/her family understand the difficulties of dealing with deportation officers at the border and cooperate with attorneys by informing attorneys when the credible interview is scheduled in advance even if officer fails to communicate with the attorney. Its also very important for a detainee to insist on being represented by an attorney during the interview even if it means extending stay in immigration jail! And its important for the detainee not to TRUST the deportation officer when he is badmouthing the attorney and stay in contact with the attorney ‘s office.
A the interview - If a detainee fails to explain clearly that he or she is afraid to go back to their country for valid reasons – they get denied credible fear interview and get deported after a very brief review of the results of the interview by immigration judge who almost always rubberstamps the negative determination by the officer of ineligibility for asylum.
If a detainee is represented by an immigration lawyer, detainee is better prepared for the credible fear interview and has a higher chance of favorable decision by deportation officers. Those who pass credible fear interviews usually get released on bail and qualify to continue their case with immigration court in their state of residence (in the state where they were originally heading while crossing the border).
WHAT HAPPENS WHEN DETAINEE PASSES THE CREDIBLE FEAR INTERVIEW?
If a detainee is able to show legitimate reasons to seek asylum and its clear to the deportation officer that detainee is not in the U.S. for economic reasons , deportation officer approves the results of credible fear interview.
After that deportation officers issue a bond and/or release approval and file the case with local immigration court . This means that former detainee after being released to his state of residency is required to GO BACK to the state of initial detention where immigration court hearing to attend that hearing.
this juncture your immigration lawyer should be filing a motion to transfer the case from the state of detention to the state of residency (most commonly from Texas or Arizona where most of those who crossed the border are initially detained) to some other state’s immigration court where they are going to reside. If Motion to transfer the case (called Motion for Change of Venue) is not properly filed by licensed immigration lawyer and is filed by a notario, the case will not be automatically transferred to the state where undocumented immigrant resides and so undocumented immigrant must travel back to Texas , Arizona or another state where hearing is scheduled to be present.
Failure to appear at that hearing will result in in absentia removal order!
WHAT HAPPENS IF RELEASED IMMIGRANT DECIDES NOT TO GO BACK TO A STATE OF DETENTION FOR HIS IMMIGRATION COURT HEARING?
There are many instances where once undocumented immigrant is released from Arizona or Texas immigration jail , they “forget” about the need to attend immigration court hearings and due to fear of being deported from the court building , lack of money , inconvenience of traveling , or bad advise by a notario do not go back to immigration court.This is the worst mistake one can make!
This leads to a removal order that has no expiration date and if you have a removal order and you are caught by immigration they deport you without giving you another opportunity to defend your case!
In addition, for your new lawyer its going to be very difficult to reopen your case in court if you have an old removal order because the deadline to file a timely motion to reopen is 6 months and most of the people with removal orders wait for years to file motions to reopen that can no longer be filed because its too late!
WHAT HAPPENS AFTER IMMIGRATION LAWYER TRANSFERS THE CASE TO A STATE OF RESIDENCY?
If your immigration lawyer successfully transferred your case before the hearing date , the hearing in the state of initial detention is canceled and a new hearing is scheduled in your state of residency. Our clients’ cases typically get transferred from Arizona or Texas to Los Angeles Immigration court.
At this point a hearing is scheduled that our clients attend with our attorneys and at that hearing attorney tells the judge that client will be filing for asylum. After this judge gives us another hearing date to bring the completed application for asylum with evidence attached. All evidence you want to attach must be translated from Spanish into English by professional translators.
Asylum application must be filed within 1 year after arrival from your country. If its not filed within one year without a good excuse why its late, asylum application will be considered a late application and will be rejected! So its important to cooperate with your lawyer to bring evidence on time to support your asylum application and to prepare your testimony statement on time to file application on time!
After application for asylum is filed , another court hearing is scheduled to do your trial – where you will have to prove by your testimony that you qualify for asylum and that its more likely than not that you will be persecuted in your country if you go back.
Its important to know that while your asylum case is pending before immigration court, you have protection against deportation and immigration cannot arrest you and deport you for being without documents in this country. That is why is a good idea to keep a copy of your asylum application receipt or next court hearing with you at all times especially while traveling within the U.S. to avoid being deported by immigration officers if they stop you.
Danger of not getting Fingerpints done
If during the asylum process or any other case with immigration court you fail to take your California department of justice, or biometrics FBI fingerprints or both, immigration judge will order you removed and will deny your case and will not even listen to your testimony. Contrary to some clients’ belief it is your responsibility to take fingerprints and NOT YOUR ATTORNEY’S RESPONSIBILITY TO REMIND YOU TO TAKE THEM!
Danger of forgetting the court date and not showing up for your court. Also it is NOT your attorneys’ responsibility to keep reminding you about your court date! At each hearing the immigration judge addresses YOU PERSONALLY requiring YOU to appear at the next court and warning YOU that YOUR failure to appear will result in you being ordered removed! So if you don’t show up for immigration court hearing, you will be ordered removed even if your attorney is present! On the other hand if you lawyer is not present for whatever reason, but you are present – you WILL NOT be ordered removed and judge will give you a continuance!
WHAT HAPPENS AT THE LAST HEARING FOR MY ASYLUM CASE?
If judge denies your case, your lawyer can appeal the case within 30 days. Appealing your case allows you to stay in the U.S. legally while your appeal is pending. Some lawyers ask for voluntary departure instead of filing appeals. Unless you actually want to go back to your country, asking for voluntary departure provides almost no benefit to you as an asylum applicant. If you want to stay in the U.S. you have to appeal the case to Board of Immigration . Appeals with Board of Immigration appeals take about a year unless you are in detention and during that period of time you are just as protected against deportation as when your asylum is still pending with the immigration court.
IF your Board of Immigration Appeals appeal is denied you are entitled to file an appeal with Federal court – in California is 9th circuit federal court . Filing such an appeal also provides you with protection against deportation for another year or so.