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3/31/2015
Preparing Asylum Cases for Submission with USCIS
April 2015
www.supportkind.org
Christie Turner
Supervising Attorney for Pro Bono Programs
KIND ‐ DC
Audra Behne
Pro Bono Coordinating Attorney
KIND ‐ Los Angeles
Part One:
Preparing to File your Client’s A l
Asylum Application with USCIS
A li i
i h USCIS
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Is your Client Eligible to File an Asylum Claim with USCIS?
• Initial jurisdiction for unaccompanied minors (UACs) lies with the Asylum Office of USCIS (“AO”). • Think back to the definition of UAC: under 18, no lawful status, not with a parent or legal guardian. Essentially, every child in or previously in ORR custody, and also children who meet the definition but were never in ORR
children who meet the definition but were never in ORR custody. • This should apply:
– even if your client has reunified with a parent. – If I‐589 has been already filed in Immigration Court, should be able to seek a continuance to file with AO. – If you client is now over 18, may still be eligible to file with the Asylum Office – USCIS has said they will look to the prior designation as a UAC unless formally terminated. USCIS Policy Memos
• 2013 USCIS memos clarified that USCIS would accept jurisdiction for all children previously designated as UACs, unless that designation was terminated. – May 28, 2013 USCIS Memo from Ted Kim, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien
Asylum Applications Filed by Unaccompanied Alien Children
– June 4, 2013 USCIS Memo from Ted Kim to Donald Neufeld, Updated Service Center Operations Procedures for Accepting Forms I‐589 Files by Unaccompanied Alien Children – June 10, 2013 USCIS Questions and Answers: Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children
Benefits of Filing with the AO
• Child “friendlier” setting. Not a court room, no witness stand, no adverse party, no cross‐examination. • Asylum Officers are specifically trained in evaluating children’s asylum claims.
• Particular child friendly accommodations can be made, such as requesting the presence of a “trusted adult” at the interview. Adult may also provide a statement.
• If AO does not grant, refers case back to the Immigration Court, so client effectively gets two opportunities to make their claim. • IJ considers asylum de novo, and also withholding of removal and CAT relief if requested.
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One‐year Deadline Does Not Apply
• INA § 208(a)(2)(B) requires that an applicant for asylum file within one year of arrival to U.S.
• However, TVPRA amended the INA: the one year deadline does not apply to UACs. INA § 208(a)(2)(E).
• Extraordinary circumstances. INA §
Extraordinary circumstances INA § 208(a)(2)(D) 208(a)(2)(D)
– Being a minor is a legal disability that is an extraordinary circumstance, which is a separate ground. • Best practice to file before 18th birthday if possible. • Accompanied children, and children without a parent but in status, not statutorily exempted from 1‐year deadline.
When to File
The “80%” Idea – be almost fully prepared to put on the case:
• Know the facts: only file the I‐589 form when you are comfortable with the facts and have collected the majority of the documentation you will submit. • Have affidavits almost finalized.
• Have your legal theory developed and outlined, if not y
g
y
p
,
drafted. • Have country conditions research mostly done. • Have expert or psych. report well underway. • Ensure that corroborating evidence is gathered or on its way.
• Be prepared to file pre‐interview submission within 5 to 8 weeks of filing I‐589! (check with local practitioners on timing).
Tips on the I‐589 Form
• Fill out the entire I‐589 application (“N/A” where applicable)
• Review facts thoroughly to make sure all potentially‐
applicable boxes are checked (race, religion, etc. may also apply).
• Check all three boxes of requested relief (Asylum, Withholding of Removal and CAT relief)
Withholding of Removal and CAT relief)
• Part B and Part C of the application should be completed with a brief overview of the claim for asylum.
• Scope: summary including major incidents of persecution and legal theory
• Be mindful of creating inconsistencies—don’t be detailed—no specific dates.
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Tips on the I‐589 Form
• Tailor information in substantive questions to establishing:
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–
–
–
Past persecution
Governmental element
Nexus with protected ground
Likelihood of future persecution
p
• The form should be signed by the applicant on page 9 only. You’ll also include your info and signature on pg. 9.
• A picture of the applicant stapled in the space provided at the top of page 9. • If you used any of the addendum pages, make sure the applicant sign them as well. A lack of signature on the addendum pages is often a cause for rejection.
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Step‐by‐Step Filing Instructions
• Initial filing includes:
– Cover letter noting that applicant is a UAC and requesting appropriate handling. If client is over 18 or never formally designated a UAC may want to include jurisdictional argument.
– UAC instruction sheet (obtain from Trial Attorney if attending an MCH before filing)
– Copy of ORR Verification of Release form with photo
– Original I‐589 form (2 copies)
O i i l I 589 f
(2
i )
– Passport photos
– Identity documents (birth certificate, passport)
– Certified translation of any foreign language documents
– G‐28 Notice of Entry of Appearance form
– Supporting evidence as appropriate for practice in your local jurisdiction.
• Make a complete copy and send via certified mail. Application filed with Nebraska Service Center and then will be routed to local field office.
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Pre‐Interview Process
• Field office schedules applicant for interview. Varies by local office but USCIS is prioritizing UAC cases nationally. Interviews could be set as early as 5 weeks after filing I‐589.
• At least one week prior to interview, file pre‐interview submission in triplicate:
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–
–
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Cover Letter (optional)
Letter brief arguing eligibility
Letter brief arguing eligibility
Affidavits of applicant and witnesses Supporting evidence
• Submission must be received by AO one week before interview, so leave extra time if mailing (hand delivery is ideal).
• Ensure that all supplemental evidence contains the applicant’s name, A# and interview date and time. *Keep in mind that AO policies vary by location. Check with local practitioners or AO to ensure compliance before filing. 12
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Pre‐Interview Submission: Cover Letter
• May be combined with the letter brief. • Annotate contents of pre‐interview submission
• Raise any procedural issues or amendments
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d li
d
• Request any child‐specific accommodations –
look at the Asylum Officer Basic Training Course (AOBTC) on USCIS.gov • List any witnesses to testify at interview
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Pre‐Interview Submission: Letter Brief
• Format: attorney preference, but whatever will be easiest for the Asylum Officer to navigate.
• Content:
– Facts
– Country conditions – Eligibility for asylum
• Do not forget: humanitarian asylum
• Remember to argue that children’s claims should be viewed through different standards. Review the Asylum Officer Basic Training Manual (AOBTC) for pointers. – Discretion
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Pre‐Interview Submission: Affidavit of Child & Adults
• Child affidavit:
– Consider developmental age, consistency and credibility of child. For very young children, some attorneys even have child draw pictures as their “affidavit!”
affidavit!
– Level of detail: be careful not to create inconsistencies
– Only speak to what the child knows
• Caretaker or adult witness affidavits:
– Facts unknown to the child
– Mental health of child / psychological harm
– Future fear / Humanitarian “other serious harm”
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Pre‐Interview Submission: Experts
• Psychological Evaluation: corroborating evidence of trauma (past persecution)
• Physical Evaluation: corroborate physical p p
, pp
effects of past persecution, if applicable. • Country Conditions Expert: evidence to support any element at issue
• Thematic Expert: phenomena relevant to claim
– E.g. Dynamics of relationships involving DV
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Pre‐Interview Submission: Index & Country Conditions Documentation
• Index: – Make adjudicator’s job easy
– Highlight persuasive content or consider using excerpts.
excerpts
• County Conditions Documentation:
– Corroborates past persecution & objective reasonableness of future fear
– Incorporate into brief in persuasive manner
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Pre‐Interview Submission: Any Other Corroborating Evidence!
• Make sure to interview your client thoroughly again about whether any corroborating evidence can be obtained from home country: police reports/denuncias, affidavits from family members ho itnessed e ents photos ne s
members who witnessed events, photos, news articles, copies of threatening notes or messages, etc. Think creatively. • Even if some of the items cannot be obtained by your filing deadline, bring them to the interview and officer may accept. 6
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Other Pre‐Interview Preparation Pointers
• Arrange for an interpreter! The Asylum Office does not provide a live interpreter (though there may be one monitoring by phone). Secure an experienced interpreter and
Secure an experienced interpreter and practice with that person during mock sessions. • Schedule preparation sessions, mock interviews with your client and others. Part Two:
Preparing for an Interview with the A l
Asylum Office
Offi
Resources to Consult • USCIS, Asylum Officer Basic Training Course, Guidelines for Children’s Asylum Claims 37 (Sept. 1, 2009)
• U.S. Dep’t of Justice, Guidelines for Children’s Asylum Claims, 1998 WL 34032561 (1998)
• U.N. High Comm’r
g
for Refugees,
g
Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/09/08 (Dec. 22, 2009)
• All of the above recourses and more can be found on the UC Hastings, Center for Gender and Refugee Studies website: http://cgrs.uchastings.edu/
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Why Client Preparation is Important
• Client Comfort
– The more you practice with your client, the more comfortable your client will be with the process.
– The more comfortable you client is with the process, the better his/her testimony will be.
• Attorney Comfort
Attorney Comfort
– The more you practice with your client, the more comfortable you will be with all aspects of your client’s story
– The more comfortable you are with your client’s story, the better your advocacy will be
• Difference in Testimony
– Your client will explain her story differently to asylum office questions and to direct/cross‐examination than he/she did to you in a narrative format.
How Much Preparation?
• The more preparation, the better
• Plan to meet with your client to prepare for the asylum office interview or hearing at least two times, but preferably more
– During the second to last meeting, conduct a tough/mock prep
• If before the court, conduct a rigorous cross‐examination
• If before the asylum office, question your client critically
– The last meeting should build up your client’s confidence and leave him/her feeling positive before the hearing/interview
Background Information to Review • Explain the who/what/where
– Who are the parties and who will be there?
– What will happen and what are the goals of the p
parties?
– Where will it take place?
• Explain the possible end results
– Win
– Referral to the Immigration Court
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Client Preparation
• Explain how your client should prepare before the hearing:
Get a good night sleep
Eat a good breakfast/lunch
Eat
a good breakfast/lunch
Don’t take any new medication/caffeine
Stick to a normal routine
Leave early/plan for traffic (take public transportation if possible)
– Dress like he or she is going to a job interview or church
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–
–
–
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Client’s Role
• Whether your client is before the Asylum Office or Immigration Court, your client only has three jobs:
– Listen Carefully to all questions
– Think before answering all questions
– Tell the truth • It is not your client’s job to determine whether an answer is “good” or “bad”
• It is your job to know the client’s story inside out and ensure that the adjudicator knows what is important
REPEAT THIS AS OFTEN AS NECESSARY
• Let your client know that you understand how difficult it is for her to have to tell her story again and again, but that hopefully, this is the last time she will ever have to do so
last time she will ever have to do so
• No one is there to “judge” the client. 9
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Tips For Your Client on Testifying
• Make eye contact with the Officer/Judge
• Do not guess at answers. If your client thinks she knows the answer but is not certain, he/she should say “I think/believe…”
• Instruct the child to answer only the question asked and to stay on topic. The child will have an opportunity at the end of the officer’s questioning to provide any additional information that was not elicited during the questioning. • It is okay to ask for a question to be repeated or to say I don’t understand
• It is okay to show emotion
Tips For Your Client on Testifying cont. • Tell all the details to the Officer/Judge
– Often, clients have told their story so many times and know that the adjudicator has a copy of their statement, so they assume the adjudicator doesn’t want to know all the details of their story
– It’s crucial that your client understands she must tell EVERYTHING about her story
• When you practice with the child, instruct her to tell the story in small “chunks” so that the interpreter can keep up.
Who: explain who is involved in the interview
•
The Asylum Officer – The Asylum Officer conducts the interview and decides whether to grant asylum
– The Asylum Officer is NOT a judge, but has expertise and training in asylum issues
•
The Interpreter (if necessary, you must provide one)
•
The language monitor (if an interpreter is used)
•
The Attorney(s)
•
Comfort person
– A telephonic monitor will listen to the interview to ensure the interpreter is properly interpreting the client’s statements
– A child is allowed to bring an adult into the interview with him/her if the child will feel more comfortable or safer with that person in the room. The comfort person should be instructed that he/she cannot answer the questions for the child, but is only there for moral support. Be sure that it is the child’s wish to have the comfort person in the room, and not the adult’s desire to be in the room.
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What: explain what will happen at the interview
• The goal of the interview is to determine whether your client is eligible for asylum, i.e. whether he/she meets the four asylum elements
• The interview will consist of the asylum officer asking the client questions about why he/she came to the q
y /
United States and why he/she is afraid to return to his/her home country
– The attorney will not ask the client any questions
– However, the attorney is there to ensure that the officer has all the information he/she needs about he client’s case
• The interview will likely last between one and three hours (usually two)
What will happen at the interview cont.
• The Asylum Officer will not issue a decision after the interview – The Officer will instruct the client/attorney to return in about two weeks to pick up the decision (if the client lives > ~ 60 miles away, the Asylum Office will mail the decision). • The Asylum Office does NOT issue denials (except if the client is in l f l t t
lawful status at the time of the decision) t th ti
f th d i i )
– The Office will either grant asylum (decision is final, no appeal) OR – The Office will refer the client to the immigration court to present the case to the Judge, who will review the case de novo
• The Los Angeles Asylum Office grants ~ 90% of applications, which is in line with many other asylum offices throughout the country. What will happen at the interview cont.
EXPLAIN CONFIDENTIALITY
• Everything that your client says during the interview is confidential.
interview is confidential. • Nothing that your client says can be repeated to anyone outside of the U.S. government or shared with her government.
• The interpreter and the language monitor are all bound by confidentiality
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Where?
• Local USCIS Asylum Office • There is security on the ground floor
– Clients will need to present an ID or the asylum interview notice with his/her ORR form
interview notice with his/her ORR form
– Clients will need to go through a metal detector at the Asylum Office (leave laptops, key chains with bottle openers/pen‐knives etc. at home)
• Plan to meet your client at your office or in the lobby of the Asylum office to avoid mishaps
Where cont.
• Make sure your client understands that the asylum office interview will be conducted in an OFFICE in an informal setting. • The client will not be going into a courtroom, before a judge.
Preparing for the Substance of the Interview
• Make sure your client understands the legally relevant parts of her story – She is trying to establish that she was harmed in the past or fears harm in the future
– On account of the relevant protected ground(s)
– She cannot get protection from the government
– She cannot find safety by relocating • Prepare your client so she can provide a clear and concise answer to the questions:
– Why are you applying for asylum? – What would happen if you went back?
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Prepare for the Substance of the Interview Cont. • Most of the asylum officer’s questions will be open‐ended, so you must work with your client so that she can tell her story and include all of the details without much prompting. • Although there isn’t a standard set of asylum interview questions, some common questions include:
– How would [the persecutor] be able to find/identify you?
– Do you know anyone else [the persecutor] has harmed?
– Why would [the persecutor] want to harm you now X time has passed?
• Make sure your client understands that “harmed” has a broad meaning and should include mental, emotional, and physical harm, along with threats, and severe harassment.
Conducting the Mock Interview
• If time permits, conduct at least one mock interview in which you “coach” your client as necessary, but be sure to conduct at least one mock interview with absolutely no coaching at all. • Conduct
Conduct the mock interview in the same format as the the mock interview in the same format as the
Officer will conduct the real interview – Begin by going through the biographic section of the I‐589 and ensuring that the information is still correct
– Then ask your client why she applied for asylum – Go through her story chronologically from there with opened ended questions, such as “what happened next.” “Is there anything else you want to tell me?”
• Nearly all Asylum Officers will end the interview by asking your client whether there is anything else she wants to say. • It is important to prepare an answer to this question, so that the client does not say ti
th t th li t d
t
something completely unexpected and potentially harmful to the claim
• Work with your client to prepare a concise and strong answer to this question in your client’s own words
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Closing Statement
• Although the interview is an informal setting, the asylum officer will provide the attorney an opportunity to present a brief closing statement
• The statement should be no longer than 5 to 10 minutes
• Provide a brief summary of the facts and a description of the statutory grounds for asylum under which the child
the statutory grounds for asylum under which the child qualifies, such as “Particular Social Group”
• The closing argument can also be used to close any gaps in the child’s testimony or explain any inconsistencies between the affidavit and child’s testimony.
• The attorney can refer to the psychological report, documents on country conditions or any other supporting documents in the closing statement to emphasize a point. THANK YOU!
Kids in Need of Defense
For more information contact:
Christie Turner
Christie Turner
[email protected]
Audra Behne
[email protected]
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