This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
Asylum is not granted as a matter of routine. To qualify for asylum, you have to have an objectively reasonable, subjectively genuine fear of persecution if returned to your home country; and, moreover, that fear must be based on a limited number of ‘protected grounds’ – race, religion, political opinion, nationality, or membership in a particular social group. On top of that, even if you do have the aforementioned fear of persecution based on a protected ground, you still have to qualify for asylum as a matter of discretion.
In previous administrations, discretionary denials of otherwise qualifying asylum claims were extremely rare. In the new Trump Administration, of course, all bets are off.
The purpose of this article is twofold: (1) to inform asylum applicants about these new ‘discretion’ questions so they can think carefully about how to answer them, and (2) to inform our fellow citizens about what the current Administration is doing in their name.
Immigration attorneys report that new questions are being asked at asylum interviews which touch on anti-Semitism, anti-Americanism, an asylum applicant’s poverty, health conditions, and wealth, and the applicant’s engagement in the community. Some of these questions aren’t unreasonable, but some are completely bonkers. Here are some of the topics and reported questions for each topic.
Anti-Semitism
- Do you hold any anti-Semitic views?
- Have you held anti-Semitic views in the past?
- Do you plan to hold any anti-Semitic views?
- Have you or your family expressed anti-Semitic opinions on Social media, at home, in public or private?
Asylum officers are not defining anti-Semitism as a matter of routine, so what anti-Semitism means is unclear. It’s reasonable to posit that the Trump Administration conflates principled opposition to Israel with anti-Semitism, because it does so as a matter of policy – as an example of anti-Semitism, the Administration suggests a social media post that says “Stop Israeli Terror in Palestine.” We can’t say how individual asylum officers will adjudicate the question; our experience suggests that, although individual officers may differ, the political pressure on them from above is extreme.
It is not clear why the asylum office is asking why members of the applicant’s family have expressed anti-Semitic views. If your Uncle Timmy is an anti-Semitic jerk, why should you be denied asylum?
Also, dear readers, if there are any philosophy grad students out there, enlighten us all: What does it mean to plan to hold a view in the future if you don’t hold it at the moment? “Today, I’m a broadly tolerant guy, but next week, watch out, I’m kicking off my new anti-Semitic era!”
Anti-Americanism
- Do you hold any anti-American view or values?
- Do you hold or have you expressed any anti-American view or values in the past?
We have no idea what anti-American “values” means in this context, and we suspect that the asylum officers don’t have a firm grip on it, either. Was it anti-American to oppose the Iraq War in 2003, as our current President pretends to have done? Is it anti-American to point out that our reputation is at a multidecade nadir? Maybe, maybe not!
Potentially Costly Health Conditions
- Do you have any chronic illnesses?
- Does anyone in your household have a chronic illness? Does anyone in your home take prescribed medication?
This fishing expedition is beneath contempt. If someone qualifies for asylum – which means, in plain English, that if we send them home, their home government may murder them – it is ridiculous to ask whether he, or his wife, or his children have a medical condition.
Financial Considerations
- Do you own a house? Pay rent or mortgage?
- Have you been employed since coming to the US?
- Have you been paying Federal taxes?
- Have you been paying state taxes?
The Administration says, as a matter of policy, “Aliens are not entitled to work while we process their asylum applications.” (That is a direct quotation from a press release!)
The same Administration also would like to know why aliens aren’t working.
Individual Merit
- Do you have any degrees/awards?
- Do you attend a religious institution or have any religious affiliations? What is the name of the church? (Author’s note: It’s revealing, isn’t it, that they go straight to church?)
- Are you involved your community here in the U.S.? If yes, how so? Where? If not, do you plan to be?
- Do you volunteer anywhere? If so, where? How? How many people have you served?
- How have you positively contributed to the United States?
- Are your kids in school?
Our general advice to asylum applicants is that they consider carefully how to answer these questions, in close consultation with an attorney. Consider that the government may know more than you think. For example, if you’re behind on your taxes, the asylum officer may know it, and prevarication is often worse than confession.
Our general view about these questions is that many of them are intellectually and morally indefensible. They’re legally indefensible, too – the case law of the Fourth Circuit controls in our jurisdiction, and, under the Fourth Circuit’s opinion in Zuh v. Mukasey, discretionary denials are supposed to be “exceedingly rare” and generally based on truly egregious conduct by the applicant.
As always, we welcome questions from the commentariat and will do our best to answer them.
