For some time now, we’ve been hearing from the Asylum Division that they would post a “Scheduling Bulletin” to give affirmative asylum seekers a better idea about wait times. Well, the Bulletin has finally arrived, which is–in a sense–good news. But it’s also bad news, since now we see exactly how slowly things are progressing at most asylum offices.
First off, if you’re curious about the status of your asylum office, check out the Bulletin here. What you’ll see is a breakdown of each asylum office and which cases they are currently interviewing (as of July 2015). So, for example, in July 2015, the Arlington Asylum Office was interviewing cases originally filed in August 2013. The chart also lists which cases each office was interviewing over the past few months, so you can see how quickly (or not) each office is moving through its cases.
Most geologists agree: The asylum offices are moving pretty quickly (except for Los Angeles).
Reviewing the Bulletin, a few things jump out at me. First, and most distressing, cases are moving very slowly at most asylum offices, and a few offices–notably Chicago, Los Angeles, and Miami–have made no discernible progress in the last four months. One mitigating factor here is that it’s summer, a time when the Southern border is particularly busy. Hopefully, once the number of asylum seekers arriving at the border wanes (as it generally does in autumn), the asylum offices will start interviewing more backlogged cases (if you are not familiar with the “asylum backlog,” please see this posting).
Another point worth noting is that the two asylum offices with jurisdiction over the Southern border states–Los Angeles and Houston–represent the slowest and the fastest offices, respectively. Los Angeles is currently interviewing cases filed in August 2011 (which is slower than I realized–I had thought they were interviewing cases from 2012) and they have been stuck on the August 2011 cases for the last four months. On the other hand, Houston, Texas is the fastest asylum office. They are interviewing cases filed in April 2014, though they have made almost no progress in the last four months either. What’s strange is that there is such disparity along the Southern border. I do not know why resources cannot be distributed more evenly to give some relief to asylum seekers at the LA office.
The only asylum office that has shown significant movement over the last four months is New York. In April 2015, the NY asylum office was interviewing cases filed in January 2013. By July 2015, they were interviewing cases filed in June/July 2013. Newark, New Jersey has also done reasonably well, advancing from December 2012 to April 2013 during the same period.
Rescheduled cases and cases involving children (many of the asylum seekers at the Southern border are children) receive priority over “regular” asylum cases. And according to the Bulletin, the asylum offices in Chicago, Houston, Los Angeles, and Miami have had many such cases. Presumably this explains the lack of progress in those asylum offices.
Finally, for people with cases pending at one of the sub offices, the Bulletin notes that it “currently does not include asylum interviews occurring outside of the eight asylum offices or the Boston sub-office (e.g. interviews occurring on circuit rides).” “Asylum offices schedule circuit ride interviews as resources permit.” The Bulletin suggests that applicants contact the “asylum office with jurisdiction over your case for more detailed information” about the schedule at sub offices. You can find contact information for each asylum office here.
So there you have it. The Bulletin will be updated monthly so you can track how quickly each asylum office is moving through the backlog. Though the current situation is discouraging, at least the Bulletin provides some information about where we stand now, and maybe some hope for those who are waiting.
My associate Ruth Dickey continues her review of data from our cases filed at the Arlington Asylum Office. She reports her findings here:
One of the biggest sources of client frustration is delay after the asylum interview. Clients are often separated from family members who remain in danger. They feel as though the future is uncertain, and they see no end in sight to their ordeal. The lack of a final decision is stressful and depressing.
Attorneys also face stress and extra work due to delayed decisions. For example, we repeatedly contact the Asylum Office about our clients’ cases, we answer client questions, and we renew employment authorization documents. We have resisted charging more money for this extra work, but it makes operating a business very difficult. Also, we have almost no power to make the decisions arrive faster, and so we feel the stress of our clients’ frustration without being able to do much about it.
Looking at data from 136 of our cases—filed in 2013 and 2014 in the Arlington, Virginia Asylum Office—we can see that about one-third of the cases have been interviewed but are still awaiting decisions. The charts below compare cases filed in 2013 with cases filed in 2014:
The Arlington Asylum Office is working through cases filed in 2013. But unfortunately, it is moving very slowly—we currently have no cases scheduled for interviews in Arlington.
The Asylum Office generally has a goal of issuing its decision two weeks after the interview takes place. Our data shows that they usually do not meet this goal. Of our interviewed cases, only about 1-in-5 applicants received a decision within two weeks of the interview:
For clients who have been interviewed and have received decisions, wait times vary widely. The median wait time for 2013 and 2014 cases was 34 days – but ranged up to 719 days (and keep in mind that this does not include data from people who have been interviewed and who are currently waiting for a decision). The following chart shows the wait time until a decision was made, by interview date:
Of course, dozens of our clients have not gotten decisions yet, and so we do not know how long they will ultimately wait.
As the next chart shows, we currently have several clients who have been waiting over a year for a decision, and a few who have been waiting for more than two years. If these clients’ information were added to the chart above, it would tell an even more dismal story since they have already waited far longer than the median wait time for cases where a decision was issued.
Lastly, let’s look at recommended approvals. Recommended approvals are issued in cases where the Asylum Office is convinced that a case meets the standard for asylum, but the background check is not yet complete. People with recommended approvals can apply for employment authorization, but cannot sponsor their family members who are waiting to join them in the U.S. The following chart shows how long our clients have waited from the date of the recommended approval to the date of the final decision (never mind how long they might have already waited to get the recommended approval). Information about people who have received recommended approvals and who are still waiting for their final decisions are also shown in the same chart:
Despite making numerous inquiries about our pending cases, we have never received a specific answer as to why delays occur. Usually, the Asylum Office informs us that the delay is due to the security background check. However, it is unclear why the background checks take so long for affirmative asylum seekers, but do not cause delays for other applicants seeking benefits from USCIS. Interestingly, asylum seekers in Immigration Court do not face these types of delays either, even when they come from conflict zones or countries where terrorism is a concern. Only affirmative asylum seekers seem subject to these inordinate delays.
Can we draw general conclusions about the operation of the Arlington Asylum Office based on our data? It is difficult to say. Many of our clients come from places like Afghanistan and Iraq, where security-background-check delays are more burdensome. Also, our sample size is relatively small. Nevertheless, our findings comport with what we hear from other attorneys and applicants with cases in Arlington (and other asylum offices).
Since the backlog began in 2013, the Asylum Division has been working to improve the situation by hiring more officers and modifying some of its procedures. We are hopeful that the asylum system will continue to change to better meet applicants’ needs. Until then, we will continue to analyze data from our cases.
My intrepid associate, Ruth Dickey, has been analyzing data from our cases filed at the Arlington Asylum Office during the past few years. She reports her findings here:
In December 2014, USCIS announced that it would address the asylum backlog in a new way: “First in, first out.” Prior to this new policy, the Asylum Offices were trying to complete as many cases as possible within 60 days. Cases that could not be interviewed within 60 days fell into the backlog. Over time, the number of cases entering the backlog grew and grew. Nationally, as of May 2015, over 85,000 applications are stuck in the backlog.
When we learned about the new “first in, first out” policy, we were hopeful that our oldest cases would be interviewed one after another in quick succession. Unfortunately, that didn’t happen—at least not yet (hope springs eternal, even for asylum lawyers). Let’s take a closer look at what is going on at the Arlington Asylum Office, the office where most of our cases are pending.
During 2013 and 2014, we filed 136 cases that are analyzed here (some cases—where the applicant moved to a different jurisdiction, for example—were excluded from the analysis in order not to skew the data). As you can see from the chart below, a large percentage of our cases fell into the backlog during those years, particularly during the second and third quarters of 2013. The low interview numbers in mid-2013 are likely due to the summer “border surge,” when many Central Americans started arriving at our Southern border and requesting asylum. The surge continued into 2014 and continues up until today. Especially in the beginning, USCIS was not prepared for the surge, and so we suspect the low interview numbers during the second and third quarters of 2013 are due to the government’s inability to deal with the sudden increase in applications.
As you can see in the next chart, a higher percentage of our cases were interviewed in 2014 than in 2013, suggesting that the Asylum Office was handling the volume more effectively. Even so, a significant portion of our cases—almost 40%—fell into the backlog in 2014. Given that the government has already interviewed the majority of cases from the fourth quarter of 2013 and from 2014, we are hopeful that once the Asylum Office reaches those cases, it will move through that portion of the backlog more quickly (the Arlington Asylum Office is currently interviewing cases filed in August 2013—about half way through the third quarter).
Since the change to the “first in, first out” policy, things have been moving slowly in Arlington. Only 16 of our backlogged cases have been scheduled for interviews during the first six months of 2015. As a point of comparison, during the same period in 2014, we had exactly twice that many—32 cases—interviewed.
For those people in the backlog who have been scheduled for an interview in 2015 (since the implementation of the new policy), how long did they have to wait? From the date the application was received until the date of the interview, the median wait time was 678 days. The following chart shows the wait times (in days – on the vertical axis) for our clients who were interviewed in 2015. You can see that there is some variability in wait times:
The family that had to wait the longest—809 days—had been scheduled for an earlier interview, but was rescheduled because their file was apparently not in the Asylum Office (where it disappeared to, we don’t know). It took an additional four months to retrieve the file and get the interview. Hopefully, we won’t see this problem again. Another of the longer-delayed cases had been scheduled for an earlier interview, but was rescheduled by the Asylum Office without explanation. This happens periodically, and we even saw it on occasion in the good old days, prior to the backlog.
Once people are finally interviewed, how long does it take to get a decision? The Asylum Office generally tries to make decisions in two weeks. Of the 16 cases from 2015, eight have received decisions. Sixteen cases is a very small number, and so we can only draw limited conclusions from this data. However, the oldest case in the group of 16 has been languishing since January. And, unfortunately, this person is not alone. Many others who were interviewed in 2013 and 2014 are still waiting for their decisions.
So that is a look at what we know now. As we continue to analyze the data, we will post what we learn.
To resolve the backlog, each Asylum Officer will have to complete 243 cases. Ugh.
You may already be familiar with the Ombudsman’s office–they are the ones who provide individual case assistance to affirmative asylum seekers and other USCIS “customers” (as they are called). They are also tasked with improving the quality of USCIS services by making recommendations to improve the administration of immigration benefits. The annual report includes these recommendations.
In this posting, I want to discuss a few of the report’s findings that relate to asylum. Also, I will discuss the steps USCIS is taking to address the asylum backlog, and some recommendations for future improvements.
First, some findings. The report summarizes where we are now:
A substantial backlog of affirmative asylum applications pending before USCIS has led to lengthy case processing times for tens of thousands of asylum seekers. Spikes in requests for reasonable and credible fear determinations, which have required the agency to redirect resources away from affirmative asylum adjudications, along with an uptick in new affirmative asylum filings, are largely responsible for the backlog and processing delays. Although USCIS has taken various measures to address these pending asylum cases, such as hiring additional staff, modifying scheduling priorities, and introducing new efficiencies into credible and reasonable fear adjudications, the backlog continues to mount.
All this, we already know, but here are some numbers: At the end of FY 2011 (September 30, 2011), there were 9,274 affirmative asylum cases pending before USCIS. By the end of December 2014, that figure reached 73,103—an increase of over 700 percent (by May 2015, the number had grown to over 85,000 cases).
Probably the main reason for the backlog is the large numbers of asylum seekers arriving at the Southern border from El Salvador, Guatemala, and Honduras. When someone arrives at the border and requests asylum, an Asylum Officer gives the applicant a reasonable fear interview or a credible fear interview (if the person “passes” the interview, she will generally be sent to Immigration Court, where a Judge will determine whether she qualifies for asylum). In FY 2011, there were a total of 14,627 such interviews. In FY 2014, there were 60,085 – a four-fold increase. The Ombudsman notes that, “Various factors have contributed to this rapid rise in credible and reasonable fear submissions, including widespread crime and violence in Central America, where a majority of the applicants originate.” The report continues:
These substantial increases demand considerable USCIS personnel and resources. For example, many Asylum Offices now send officers to various detention facilities around the nation to conduct credible and reasonable fear interviews. Such assignments deplete resources previously dedicated to affirmative asylum applications.
Another reason for the backlog is that the rate of new affirmative asylum filings has grown. “In FY 2011, asylum seekers filed 35,067 affirmative asylum applications with USCIS.” “In FY 2014, asylum seekers filed 56,912 affirmative asylum applications, a 62 percent increase.”
In addition, between September 2013 and December 2014, the number of “Unaccompanied Alien Children” with cases before USCIS increased from 868 to 4,221. These cases receive priority over backlogged adult applicants.
So what has USCIS done to address the delay?
First, the Asylum Division has been hiring more Asylum Officers. In 2013, there were 203 officers; by January 2015, there were 350, and the Asylum Division has authorization to elevate its total number of Asylum Officer positions to 448. Unfortunately, Asylum Officers do not stay in their jobs very long. The average tenure is only 14 months. One reason for the low retention rate may be that the Asylum Officer position does not have great promotional potential. Salaries start in the low $50-thousands and max out at less than $100,000. By comparison, lawyers who work in other areas of the federal government can earn more than $150,000 per year (and salaries in the private sector can be much higher).
Second, starting in late December 2014, USCIS now interviews cases on a “first-in, first-out” basis, meaning that the oldest cases are interviewed first. There is concern that such a system will encourage people to file frivolous cases in order to get a work permit while their cases are pending, but so far, we really do not know if that is happening.
Third, in May 2015, USCIS announced that it would begin publishing estimated wait times for asylum interviews at the different Asylum Offices. Supposedly, they will provide an approximate timetable—roughly a two to three-month range—within which the interview will take place. We have been hearing about this idea for some time, and hopefully, USCIS will post this information soon.
Finally, “USCIS has implemented a range of policy and procedural changes in the credible and reasonable fear contexts that have had the effect of shortening case processing times.” For example, more interviews are conducted telephonically, as opposed to in-person, which helps save the Asylum Officer’s time. Of course, shortcuts potentially affect the quality of the decision-making, and USCIS is monitoring this. Personally, given that the large majority of applicants “pass” their credible and reasonable fear interviews, I think it would save time to eliminate the interviews altogether, and allow anyone to submit an asylum application and go directly to court.
The report also lists two ways to potentially accelerate the interview date: (1) interview expedite requests; and (2) interview “Short Lists:”
First, each Asylum Office accepts and evaluates requests for expedited interviews, granting or denying those requests based on humanitarian factors, such as documented medical exigencies, as well as the Asylum Office’s available resources. Depending on the Asylum Office, applicants may make these requests in-person or via email. Some Asylum Offices also maintain Short Lists, containing the names of backlogged applicants who have volunteered to make themselves available for interviews scheduled on short notice due to unforeseen interview cancellations or other developments. Backlogged applicants may wish to contact their local Asylum Office to inquire about the availability of such a list.
Lastly, I want to briefly discuss the report’s findings related to delays obtaining Employment Authorization Documents (“EADs”). The main point of interest here is that the delays are seasonal. For various reasons, EAD applications filed during the summer months take longer. This means–if possible–try to file for or renew your EAD outside the busy season. To me, there is an easy solution to this problem, at least as far as asylum seekers are concerned: USCIS should make the EAD valid for two years instead of one, or better yet, tie the EAD to the asylum application, so it is valid for the duration of the case. I have discussed problems and suggestions for improvement in the EAD process here.
Perhaps it provides some comfort to asylum seekers to know that the U.S. government is trying to reduce the backlog and move their cases along. If you are interested to learn more, take a look at the full report.
If you have a case pending with the Asylum Office and you move, you are supposed to file a change of address (form AR-11) within 10 days. It should be that easy, but of course, these days at the Asylum Office, nothing is easy.
Does this count as a permanent address?
The first problem is that if you move and you file a change of address, it could affect your eligibility for an Employment Authorization Document (“EAD”)–a work permit. Once your case is received by the Asylum Division, the “Asylum Clock” starts to count time. When the Clock reaches 180 days, you are eligible for an EAD (you can mail your EAD application after 150 days, but unless the Clock reaches 180 days, you will not receive the EAD). The problem is that if you do anything to cause a delay in your case, the Clock will stop and you won’t get your EAD, at least not for a long time. [Update 04/12/2017: Moving your case to a new Asylum Office should not stop the clock; this rule was changed by USCIS].
The Clock stops if you fail to appear for an interview or a fingerprint appointment, or if you move your case to a different Asylum Office–all these things are considered applicant-caused delay. Therefore, if you move, and the move results in your case transferring to a different Asylum Office, you may lose your opportunity to get an EAD (to see whether a particular move will cause your case to transfer to a new Asylum Office, you can check here).
In theory, the solution to this problem is easy: Don’t move until after you receive your EAD. In reality, it is not always so simple. People who file for asylum often do not have stable addresses in the United States (they’re refugees after all), and so it can be difficult to maintain a permanent address for long enough to receive the EAD. If at all possible, you should find a long-term address and use that address when you file your case. This will potentially save you a lot of trouble down the line.
For those unlucky few who must move their case to a different asylum office, you have to make a choice: Change your address–as the law requires–and likely lose the EAD (if less than 180 days have passed on the Clock), or violate the law by either keeping the old address (assuming you can still get mail there) or using another address within the jurisdiction of the original asylum office. If you choose to violate the law, you will probably get the EAD, but you could be subject to civil and criminal penalties (a fine and up to 30 days in jail), and it could affect the outcome of your asylum case (“So, Ms. Asylum-Seeker, you lied to us about your address. What else are you lying about?”).
Another problem for people who change Asylum Offices is that the transfer can cause delay (though I’ve seen examples both ways – usually a move makes the case slower, but in other cases, it seems to make the case faster). It may also put you far away from the lawyer who initially prepared your case or other people who are assisting you. There is not much you can do about these things, but they are good to think about before you file the case.
A third problem occurs when you move for a temporary period of time. I see this a lot: People move to a new city for school or work, but they do not change their “permanent” address. In this case, it is sometimes difficult to know whether to file a change of address form. If you change your address again and again, you will potentially bounce around between different asylum offices and never get an interview. On the other hand, the Asylum Officer might be suspicious if you list your home address in one city, but you are working or studying in a distant city. When my clients make a “temporary” move, I advise them to keep as much of their documents at their “permanent” address as possible: Driver’s license, tax documents, bank accounts, etc. Even so, it is unclear whether we are violating the law by not informing DHS about the temporary move. Indeed, the law itself (INA § 265) provides little guidance. At least in my experience, the Asylum Office is fairly lenient on people who make temporary moves, as long as there is evidence that they have maintained the permanent address.
As a lawyer, of course, I cannot advise anyone to violate the law by not filing a change of address form. But I would offer that if you are thinking about violating the law in order to get your EAD or keep your case from being transferred, you should talk to a lawyer first about your specific case. It may seem easy enough to not inform USCIS of an address change, but I have seen this play out at asylum interviews, and I recently almost had a big problem for one client who failed to inform USCIS about his change of address (let’s just say I was chastised by the Asylum Officer, which made me feel kind-of bad (Jewish guilt and all that), but fortunately, the client received asylum).
In the end, the best way to avoid a problem is to file the asylum application using an address where you can remain for a while. In the days before the backlog, when cases only took a few months, this was not difficult. But now, like everything else related to asylum, it ain’t easy.
If you’ve visited this website before, you know that I’ve written about the asylum backlog again and again… and again and again and again and again. And yet again. And once more. And probably a few other times in-between. USCIS recently released some new statistics on asylum, and so I thought I would share them here and discuss the current situation.
Measured in smoots, the backlog is 86.9 miles long + one ear.
First off, despite the efforts of the Asylum Division, the backlog continues to grow. In January 2015, the total number of backlogged cases was 76,446. By the end of March 2015, there were 82,175 backlogged asylum cases nationwide. The numbers have only increased since then.
The main cause of the backlog has been large numbers of people–mostly young people–coming to the United States from Central America. These young people are detained at the border and receive a credible fear interview, which is an initial assessment of eligibility for asylum. If they pass the credible fear interview, their case is referred to an Immigration Court, which then fully reviews their asylum application. The credible fear interviews are conducted by Asylum Officers, and because they are detained at government expense, the young people are given priority over other (non-detained) asylum seekers. Because the Asylum Division must devote resources to these credible fear interviews, they have been unable to keep up with the more traditional asylum cases. Hence, the backlog.
I keep expecting the number of young people coming here to wane, but so far that has not been the case. Indeed, the number of people coming from Central America this year is nearly identical to the numbers we saw last year. And given that summer is traditionally a busier time for migration from Central America, we can expect more young people to arrive at our border in the next few months. Thus, it seems likely that the backlogged cases will keep piling up.
According to the latest statistics, the least backlogged offices are Houston (3,971 backlogged cases), Arlington (5,791), and Chicago (6,485). The most backlogged office is Los Angeles (17,042), followed by Newark (14,924), New York (13,568), Miami (11,366), and San Francisco (9,028). Wait times in these offices roughly correlate with the number of cases backlogged, so Houston is currently the fastest office and Los Angeles is the slowest.
Of course, obtaining a (relatively) quick interview date is of little value if the case is denied. In terms of grant rates, the fastest offices are not necessarily the most likely to grant asylum. Although the statistics on this vary, the offices in Chicago, Houston, Miami, Newark, and New York all grant asylum less than 33% of the time. Arlington and Los Angeles grant about 50% of their cases, and San Francisco grants over 60% of its cases.
So what is the Asylum Division doing to address the backlog?
For one thing, they have been hiring more Asylum Officers. Since the backlog began in 2013, the number of staff members has increased by 90% and they continue to hire and train more officers. It appears that the Asylum Division will continue to add new officers through 2016. So if–and it is a big if–we see a drop in credible fear interviews at the border, the asylum offices should be well positioned to make some progress on the backlog.
The Asylum Division is also making an effort to keep the public more informed about the backlog. For some months now, there has been discussion about providing more information about processing times at the different asylum offices (for example, the Arlington, Virginia office is currently interviewing cases from July 2013). Because workloads are unpredictable, the asylum offices do not know when they will interview an individual case, but they do know which cases they are processing now. By posting this information, at least asylum seekers will have some idea about where they stand in the queue (the Department of State has a similar system for family- and employment-based immigration visas).
The asylum offices have also created some very limited ways to expedite cases. I have discussed those here.
As an advocate for asylum seekers, of course I believe that more should be done. Most importantly, I would like to see the asylum offices give higher priority to people separated from their immediate relatives. I would also like to see more resources devoted to processing I-730 petitions, which allow approved asylum seekers to bring their spouses and children to the U.S. Also, given that asylum cases are moving slowly, I would like to see USCIS issue work permits (EADs) for two or more years, instead of just one year. Finally, I would like to see responsibility for credible fear interviews moved from the Asylum Division to a separate unit or–better yet–the elimination of credible fear interviews altogether (CFIs are basically rubber stamps and thus a waste of resources; it would be better if such cases were adjudicated in the first instance by an Immigration Judge).
The Asylum Division is faced with a very difficult–if not impossible–task: To continue adjudicating asylum cases while dealing with an unpredictable and overwhelming number of credible fear cases, all the while, with a hostile Congress looking for excuses to reduce asylum protections. For the sake of our asylum system and those who need protection, I hope they can navigate these treacherous waters.
These days, I feel a bit like a broken record: Delay, delay, delay. It’s all I seem to write about (and what I spend much of my work day dealing with). But it is the big issue with asylum cases, both in the Asylum Office and the Immigration Court, and so it is on everyone’s mind. Today I want to talk about delay at the Asylum Office and what can be done about it.
Yipee! Asylum cases filed during the Jurassic period are now being interviewed.
Most recently, the Asylum Office changed its policy and is now interviewing old cases before new cases. This means that new cases will probably take one to two years before the interview. Previously-filed cases will be interviewed in the order that they were received by the Asylum Office. Our oldest backlog cases–filed in April 2013–have just been scheduled for interviews, so we are starting to see the effect of the new policy.
Anyway, let’s get to it. If your case is delayed, what can you do about it? There are several actions you can take to try to get a faster interview date. None of them is guaranteed to work, but–depending on your circumstances–some may be worth a try.
Short List: You can put your case on the “short list.” The short list is a list of people who will be contacted for an interview if another case is canceled. In my local Asylum Office (Virginia), there are approximately 250 cases on the short list. The Asylum Office interviews about 10 such cases per month, so the “short list” is not very short or very fast. When your name is called, you may not have much notice before the interview (for example, the Asylum Office could call you today and tell you to appear for an interview tomorrow). For this reason, when you put your name on the short list, your case should be complete and all documents should be submitted. This is particularly crucial if your Asylum Office–like mine–requires all documents to be submitted at least one week prior to the interview.
Once your name is on the short list, the Asylum Office will eventually contact you for an interview. In the event that you are called, but cannot attend, there is no penalty. However, your name will go to the back of the line, so probably you will not be called again for some time.
The bottom line here is that the short list may be a way to get an earlier interview date, but it is not all that fast. So it is certainly not a perfect solution. On the other hand, there really is no downside to putting your name on the short list, so if you would like to move your case faster, this is a good first step.
Request to Expedite: If you have a medical, family, professional, or other emergency or need, you can ask the Asylum Office to expedite your case. We have had mixed luck with this option. We’ve tried to expedite for several people where they had family members overseas who were facing problems. For most of these cases, the Asylum Office did not expedite, but for a few, it did. We were able to expedite a case where the client had cancer. We’ve also had luck expediting a case where the client needed to obtain status for professional reasons. In short, our success at expediting cases seems to have little relationship to the seriousness of the client’s problem.
If you want to expedite your case, you need to contact the Asylum Office and ask to expedite. You need to explain why you want to expedite and include some evidence–such as a doctor’s note–about the reason you want the case expedited. Again, we’ve had very mixed success with getting our clients’ cases expedited, but there really is no down side to trying.
Congress: You can contact your local Congressional Representative to ask for help with your case. You can find contact information for your local Representative here and for your state’s Senators here. Generally, in my experience, this option has not been effective at getting a faster interview date, but there is no harm in trying. If you have a U.S. citizen friend (or church group or other group) who can make this request for you, it may be more effective.
DHS Ombudsman: You can inquire with the DHS Ombudsman’s office about your case. This office exists to assist people who have problem cases. The Ombudsman’s website is here. I have a high opinion of the Ombudsman’s office, and they do want to help, but I think their ability to make cases go faster is very limited. I doubt they will be able to help make a case faster under ordinary circumstances. But perhaps if you have tried to expedite due to an emergency, and you have not had success, they could assist you.
Mandamus: You can file a Mandamus lawsuit against the Asylum Office. In a Mandamus lawsuit, you sue the Asylum Office and ask the Judge to order the Asylum Office to do its job (process your case). I have never done this, but I have heard about some applicants successfully suing the Asylum Office. Generally, the Asylum Office will not want to waste resources fighting Mandamus suits, so they might agree to process the case rather than fight the lawsuit. As I see it, the two downsides to this are: (1) There is not a strong legal basis to force the Asylum Office to process a person’s case. The regulations generally require asylum cases to be processed in less than six months, but there are broad exceptions to this time frame, and the Asylum Office can rely on those exceptions to process cases more slowly. Although the suits may not be very strong legally, they can still succeed where the Asylum Office would rather interview the applicant than fight the lawsuit; and (2) It can be expensive to hire an attorney to process a Mandamus lawsuit. For applicants who can afford this approach, however, it might offer a way to make things faster (though it will surely not enamor you to the Asylum Office).
To learn more about your options, you may want to contact your local Asylum Office. Contact information about your office can be found here. There is no magic solution to delay at the Asylum Office, but I hope that some of these suggestions will be helpful. If you have had success with these or other ideas, please let us know.
As of December 2014, there was 73,103 asylum cases pending in Asylum Offices across the United States. That’s up from 65,759 in October, an increase of 7,344 cases in just three months (you can see the latest stats here, including a breakdown for each Asylum Office). So it’s clear that despite their efforts, the Asylum Offices are continuing to fall behind in terms of processing cases. Indeed, in the best month of the last quarter, the Asylum Office completed 2,947 cases. At that rate–and assuming no new applicants file for asylum–it would take over two years to get through the current backlog. This is not good, and the Asylum Offices are now making changes to deal with the situation.
“Congratulations! It’s finally your turn.”
I’ve written before about the reasons for these delays. Primarily, it was due to a significant increase of asylum seekers from Central America arriving at our Southern border. As best as I can tell, the number of people coming here from Central America has not abated. Since most of these applicants are detained at government expense and because many of them are minors, their cases are given priority, at the expense of other asylum seekers.
So how were the Asylum Offices dealing with the increased volume, and what has changed?
Until December of last year, the Asylum Offices were attempting to process cases on a “last in, first out” basis. Meaning, they skipped over the old cases and tried to process new cases. The logic was that if they started with the old cases, processing times would be greatly increased for new cases. If an alien knows her case will take several years, she might decide to file a frivolous case, just for the Employment Authorization document (“EAD”). The slower the case moves–the thinking goes–the greater the incentive for such people to file false cases. The fear of frivolous applicants taking advantage of the system in this way is not unfounded.
In the 1980s and early 1990s, when a person filed for asylum, he received an EAD more quickly. At this time, there were massive delays and cases took many years. The combination of long waiting periods and quick EADs encouraged fraud. I heard one anecdote from an INS officer who remembered a U-Haul truck full of applications arriving for processing. They were all boilerplate cases from China, filed by the same (probably unscrupulous) attorney. Even if the cases were ultimately denied, the applicants would have an EAD and be able to live and work in the U.S. for several years. Of course, many cases during this period were legitimate. In those days, there were very brutal civil wars in several Central American countries. As a result, many people fled to the United States.
In 1995, the law changed so that asylum applicants had to wait 180 days before they were eligible for an EAD (though they could mail the application for the EAD after 150 days). This was intended to reduce fraud. I have my doubts as to whether this change made much of an impact, but as the civil wars to our South ended, refugee flows decreased, and the Asylum Offices slowly reduced wait times. By the time I went into private practice (in late 2003), asylum cases were interviewed a few months after filing, and most applicants received decisions a few weeks after the interview.
This all changed in early 2013, when large numbers of Central Americans–mostly young people–again began arriving at our border. The migration was not spurred by war, but by generalized violence from gangs and domestic abusers, as well as a failure by Central American governments to protect their citizens. The influx of new people overwhelmed the system and created the situation that we have today.
USCIS (the Asylum Office) has been struggling to keep up. Here is a recent announcement about their efforts:
The USCIS Asylum Division is hiring an additional 175 asylum officers, increasing the number of authorized asylum officer positions to 448. This represents a 65% increase since July 2013. As of January 2015, the Asylum Division has 350 officers on board and continues to hire and train new personnel. During 2014, USCIS also trained and temporarily detailed officers to the Asylum Division to assist with the increasing workload.
Unfortunately, their efforts have not been enough. As of December 26, 2014, they abandoned the “last in, first out” system. Now, the Asylum Offices will process cases in the following order of priority:
First, applications that were scheduled for an interview, but the applicant requested a new interview date;
Second, applications filed by children; and
Third, all other pending affirmative asylum applications will be scheduled for interviews in the order they were received, with oldest cases scheduled first.
In other words, aside from rescheduled cases and cases involving children, the Asylum Offices will now process old cases first. So what does this mean?
First, the good news. For those who have been waiting for two years for an interview, hopefully, your time is coming soon (though in my office, we have not yet seen any of our old cases scheduled).
Next, the bad news. If you are a new asylum applicant, you can expect to wait a long time for your interview. How long, we do not know, but I suspect that–even if they hire more officers, as they are trying to do–it will be at least a year. There are some minimal things to do to make a case faster (the “short list” and a request to expedite for emergent reasons), but generally it is very difficult to obtain a faster interview date.
And finally, the possibly bad news. We will see whether long delays encourage people to file more frivolous cases. If so, it will further clog the system.
As for me, of course I am rarely happy about change, and this change is no exception. I am glad that the government will start processing old cases. Those people have been waiting a long time. However, I wish they would give priority to people separated from their spouse and children–whether they filed two years ago or two days ago. It seems to me that single people can endure the wait much better. Like the old system, the new system does little to help people who are missing their family members, and to me, that is the real tragedy of the backlog.
They say that those who do not learn from history are doomed to repeat it. In that spirit, I’d like to discuss some asylum cases that I’ve lost (or at least that were referred by the Asylum Office to the Immigration Court) and why the cases were not successful.
Remember: You can’t spell “client” without “lie.”
I am prompted to write about this topic by a recent, unpleasant experience at the Asylum Office. My client was an Iraqi man who claimed to have been kidnapped by a militia, which targeted him due to his religion. Unfortunately–and despite us directly asking him about his travels–the man failed to tell us that he had been to Jordan and applied for refugee status there through the UN. At the interview, the client again denied that he had ever been to Jordan, but then the Asylum Officer told him, “Service records indicate that you applied for refugee status in Jordan in 2011” (whenever an Asylum Officer begins a sentence with “Service records indicate…”, you know you are in trouble). The client then admitted that he had been in Jordan for a year. At this point, it was obvious to me that things were only going to get worse from there, and so I recommended that the client end the interview immediately, which he did. That is the first time I ever had to end an interview in this way, and, frankly, it is pretty upsetting. The case has now been referred to court, where–if I continue as the attorney–we will have a mess on our hands. So what are the lessons?
First, and most obvious: Don’t lie to your lawyer. In the above example, if the man had told me about his time in Jordan, we could have dealt with it. He didn’t and so we couldn’t. Unfortunately, many immigrants take the advice of their “community” over that of their lawyer. Asylum seekers need to understand the role of the attorney–it is our job to represent you in a process that can be confrontational, and so the government can use information from your past against you. If you don’t tell your lawyer about past problems (especially when he specifically asks you), we cannot help you avoid those problems.
Another lesson is that the U.S. government often knows more than you think they know. If you have crossed a border, it’s likely that the government knows about it. The Asylum Officer will have access to anything that you said during any previous contacts with the U.S. government (including during visa interviews). The Asylum Officer also probably has access to anything you said in interviews with other governments or the United Nations. So if you lied in a prior encounter with the U.S. government or any other government, you’d be well advised to inform your attorney. That way, he can try to mitigate the damage. Also, in asylum cases, where a person lies to obtain a visa in order to escape persecution, the lie is not necessarily fatal to the asylum claim. See Matter of Pula.
A different area where we see clients get into trouble is with family relationships. Sometimes, a client will say he is single when he’s married, or that he has five children when he has two. Of course, if the client listed different relatives on a visa application, the U.S. government will know about it, and the lie will damage the client’s credibility. Why would a client lie about this? The most generous explanation, which has the virtue of being true in some cases, is that the client considers the listed relative to be his child, but there is no formal adoption and the client does not understand the legal niceties of the question. In many societies, people who raise a relative’s child consider that child their own. As long as the client explains the situation and the Asylum Officer doesn’t think the client is trying to hide something, she should be fine, but again, if the client doesn’t tell the lawyer, the lawyer cannot properly prepare the case.
Speaking of family cases and cases where the government knows more than you’d think, I had one case where the woman got married, but did not list the marriage on her asylum form (and did not tell me). In fact, she really did not consider herself married–she signed a marriage contract, but never consummated the marriage, and she seemed to have put it behind her. Unfortunately for her, the Asylum Officer somehow knew that she was married. The result: Her case was denied and referred to court. Had she informed me (and the Asylum Office) that she was married, she likely would have been approved–her brother’s case was approved under the same circumstances. So again, the lesson is that the government may know more than you think they know.
The bottom line here is that when preparing an asylum application, it is a bad idea to lie. The U.S. government knows a lot. How do they know so much? I don’t know. Maybe ask Edward Snowden. But the point is, if you are filing an asylum application and you are not forthcoming with your responses, you risk losing your case.
Some asylum seekers file their applications and never receive an interview. Others are interviewed for asylum and never receive a decision. I’ve discussed the first problem–called the backlog–several times, but today I want to discuss the second problem. What happens to people who are interviewed for asylum, but then wait forever for a decision?
Better late than never.
I’ve had a number of clients with this problem. They fall into a few broad categories.
One group are people from countries that are considered a security threat to the United States–countries like Afghanistan, Syria, Iraq, and Somalia. People from such countries are subject to more extensive—and thus more time consuming—security background checks. The security check process is very opaque, so we really don’t know much about what the government is checking or why it takes so long, and the length of the delay seems to have nothing to do with the person’s personal history (for example, I’ve had clients who worked in the U.S. Embassy in their country or with the U.S. military, and still the background check was delayed). To me, the security background check delays don’t make sense. If the person is a threat to the United States, allowing him to live freely here for months or years while the government investigates his background seems like a bad idea. Another aspect of the background check that does not make sense is that asylum seekers in court never seem to be delayed by security checks. Also, aliens seeking their residency in other ways (marriage to a U.S. citizen or through employment) don’t seem to have problems with background checks either. While the need for background checks is clear, the inordinate delays for asylum seekers is hard to understand.
Another group of people who face delays after the interview are people who may have provided “material support” to terrorists or persecutors. I have a client like this–he was kidnapped by terrorists and released only after he negotiated a ransom (which was paid by his relative). Had he not paid the ransom, his case would not have been delayed post-interview. Of course, had he not paid the ransom, he would have been killed by the kidnappers, so the point would probably be moot. I imagine that his case is subject to review by Headquarters, which again, seems reasonable. But why it should take 10 months (so far) and what they hope to discover through an additional review, I don’t know.
A third group of people whose cases are delayed are members of disfavored political parties or organizations. Such people might also be subject to the “material support” bar, but even if they have not provided support to persecutors, their cases might be delayed.
A final group are high-profile cases, such as diplomats and public figures. When such a person receives asylum (or is denied asylum), there are potential political ramifications. Again, while I imagine it makes sense to review such cases at a higher level, I am not exactly sure what such a review will accomplish. The law of asylum is (supposedly) objective–we should not deny asylum to an individual just because her home government will be offended–so it is unclear what there is to review.
These delays are particularly frustrating given that decisions in asylum cases should generally be made within six months of filing. According to INA § 208(d)(5)(A)(iii), “in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” Unfortunately, the “exceptional circumstances” clause is the exception that swallows the rule. These days, everything from backlog to background check to Asylum Office error seems to pass for exceptional circumstances. I know this is not really anyone’s fault–the Asylum Offices are overwhelmingly busy, but it is still quite frustrating.
Indeed, I have had clients waiting for more than two years (two years!) after their interview, and the asylum offices can give us not even a hint about when we will receive a decision. The worst part about these delays is how they affect asylum seekers who are separated from their families. I’ve already had a few clients with strong claims abandon their cases due to the intolerable wait times. The saddest case was an Afghan man who recently left the country, two years after receiving a “recommended approval.” The client had a wife and small children who were waiting in Afghanistan. After he received the recommended approval–in 2012–we were hopeful that he would soon receive his final approval, and then petition for his family. After enduring a two-year wait, during which time first his child and then his wife suffered serious illnesses, the client finally gave up and returned to his family. This is a man who worked closely with the U.S. military in Afghanistan and who has a very legitimate fear of the Taliban. In his case, we would have been better off if the Asylum Office had just denied his claim–at least then he would have known that he was on his own. Instead, he relied on our country for help, we told him we would help, and then we let him down.
Delays after the interviews seem to affect a minority of applicants, and they have not garnered as much attention as the backlog. However, they can be just as frustrating and never-ending as backlogged cases. At the minimum, it would be helpful if the Asylum Offices could provide some type of time frame for these people, particularly when they are separated from family members. As DHS struggles to deal with the backlog, I hope they don’t forget about those who have been interviewed, but who are also stuck waiting.
I recently participated in a panel discussion at the Congressional Black Caucus Foundation in Washington, DC. The panel was hosted by Congresswoman Yvette Clarke and featured speakers from academia, non-profits, government, and the private bar. The introductory speaker was the Ambassador of Jamaica, who (to my surprise) knew more about asylum law than most immigration attorneys. The focus of the panel was on asylum seekers of African decent (so, generally, people from Africa, the Caribbean, and Latin America).
Déjà queue – The backlog is back. Or maybe it really never went away.
One purpose of the panel was to bring attention to asylum seekers and refugees from Africa and the African diaspora. According to Jana Mason of UNHCR, despite the recent turmoil in the Middle East, the plurality of the world’s refugees and internally displaced people come from Africa. This is significant because in the United States, there is not a strong constituency to support these people (as there is for Cubans, for example). The result is that African and diaspora asylum seekers often receive less attention and less support than asylum seekers from other places. The CBC hopes to improve our government’s policies towards African asylum seekers, and our panel was part of that effort.
Panel speakers also touched on issues that affect asylum seekers in the U.S. more generally. The most important comments in that regard came from John Lafferty, the Chief of the Asylum Division at USCIS, who spoke–among other things–about the backlog (for some background on the backlog, check out my previous post).
The statistics Mr. Lafferty cited were sobering: 55,000 affirmative asylum cases filed in FY 2014, over 50,000 credible fear interviews, and a nationwide backlog of 60,000 cases. USCIS estimates that it might take three to four years to resolve the backlog, and presumably that’s only if unforeseen events don’t cause additional delay.
One piece of good news is that USCIS has been working hard to deal with the situation. In the last year or so, they’ve grown from 273 asylum officers to 425 officers, and they plan to hire additional officers going forward. I must say that my experience with the new officers has been a bit mixed. Most are excellent–professional, courteous, knowledgeable, and fair. A few, though, seem to be unfamiliar with the law or with basic interview techniques. Hopefully, as they gain more experience, these kinks will be worked out (and hopefully not too many legitimate refugees will be denied asylum in the mean time).
Despite USCIS’s efforts, the backlog has continued to grow. At this point, even if no new cases enter the system, it would take over one year to review all 60,000 cases. And of course, new cases continue to enter the system all the time. Given the large number of people stuck in the backlog, I’d like to offer a few suggestions on how to make life easier for those who are waiting:
First, and I think most importantly, USCIS should give priority to applicants with family members who are overseas. This can be done in at least two ways: (1) Review existing I-589 forms, and where there is a spouse or child who is currently not in the U.S., give that case priority; and (2) when a backlogged case is (finally) approved, give priority to any I-730 petition for family members following to join.
Second, and this would probably require a legislative fix so maybe it is pie in the sky, for any case that USCIS knows will enter the backlog, allow the applicant to file immediately for her work permit (under existing law, the asylum applicant must wait 150 days before filing for a work permit).
Third, instead of issuing the work permit (called an employment authorization document or EAD) for one year, issue it for two years (or more). A two-year EAD would make life easier for asylum seekers. Renewing the permit every year is expensive and processing delays sometimes result in people losing their jobs and driver’s licenses (which are tied to the EADs).
Fourth, devote more resources to backlogged cases, even if this means slowing down the process for newly-filed cases (backlogged cases have been skipped; USCIS processes new cases before backlogged cases). Even if only a few backlogged cases were being adjudicated, this would at least give hope to the thousands who are waiting without any sign of progress. Also, it would be helpful for people to have some sense of when their cases will be adjudicated. USCIS should endeavor to release as much information as available about their efforts to resolve the backlog. Given that each Asylum Office has its own website, perhaps the information could be posted there and updated regularly.
I recognize that USCIS’s situation is difficult and unprecedented, and that they have been overwhelmed by the large numbers of new applications and credible fear interviews. But from my view of things, the situation for those who are waiting is pretty rough. These modest suggestions would help to mitigate the difficulty for the most seriously affected, and would give some hope and relief to the others.
For certain applications with USCIS, the applicant can pay an additional fee of $1,000.00 and receive “premium processing.” For people seeking an H1B visa or a green card based on extraordinary ability, payment of the premium processing fee is the norm, and the result is that USCIS responds to the application (sometimes with an approval, other times with a request for additional evidence) within a few weeks. So should premium processing be available for people seeking asylum?
Waiting in line is a poor man’s game.
There are certainly arguments against such a scheme: Humanitarian benefits should not be for sale, it is unfair to privilege wealthy applicants over poor applicants, asylum is somehow cheapened by making it more expensive. But given the current state of affairs in the asylum world, I think that USCIS should allow premium processing for asylum seekers who want it and can pay for it.
First, the current state of affairs: The asylum system is groaning under the weight of too many applications. Thousands of cases from 2013 are still lost in limbo, and–at least based on my observation of the local office here in Virginia–we seem to be on the verge of another slow down. People separated from family members have no recourse except to wait. And worse, they have no idea how long they will have to wait. The Asylum Offices have created “short lists” where (supposedly) you can put your name on a list, and if a slot opens up, you will be interviewed. So far, at least for my clients, this seems to work not at all. The bottom line is that we are facing very long delays and applicants and their family members are suffering severely.
So how would premium processing help?
Obviously, for those applicants who could pay the fee (whether $1,000.00 or some other amount), their cases would be given priority. This would benefit those applicants who pay the fee, but–if implemented correctly–it would also benefit people who do not pay the fee because the premium processing cases would be removed from the general queue, which would free up interview slots for everyone else.
Quantifying the effect of a premium processing fee is a bit tricky, however. For one thing, it is not easy to find asylum statistics from the government. A good guess is that between 3,500 and 4,000 people per month file affirmative asylum cases. That is approximately 40,000 people per year. If half those people paid a premium processing fee of $1,000.00, an additional $20 million would be pumped into the system. This would be a significant increase in funding. As best as I can tell, the budget for asylum and refugee operations for FY 2014 is about $236 million, so an additional $20 million for asylum operations alone would be a major increase (the asylum and refugee budget is paid for by USCIS application fees from non-asylum cases, so the cost to U.S. tax payers is minimal). With this additional money, the Asylum Offices could hire more officers, provide resources to expedite background checks, set up a system so applicants could track the progress of their cases, and even provide free donuts and coffee to attorneys waiting for their clients’ interviews. In other words, the money could be used to improve the system for everyone, including those who do not pay the fee.
Of course, we don’t know how many asylum applicants would (or could) pay a premium processing fee, but I suspect that many would pay. Remember that asylum applicants differ from refugees in that they have come to the United States on their own. Whether they came legally or illegally, it is likely that they paid for their journey here. Also, many asylum applicants pay attorneys or notarios to prepare their cases. My guess is that many such people would be happy to pay a fee if it meant that their cases would be adjudicated more quickly.
I must admit that I feel a bit uncomfortable about asking asylum applicants to pay the government to adjudicate their cases (which is maybe ironic, since I ask them to pay me). But given the difficulties caused by long delays (separation from family, stress, uncertainty), I feel that the benefits of a premium processing system would far outweigh any disadvantages.
Last time, I discussed the asylum case backlog from 2013: Why it happened, what (little) can be done to help, and DHS’s justification for processing new cases before old cases. Today, I want to make some suggestions about how DHS might better handle this situation.
DHS has created a new, less humorous version of the old NPR gameshow.
First and foremost, DHS should provide better information about what is happening. While I imagine that DHS does not always know what is happening (after all, the backlog is unprecedented), it could be providing better information to the backlogged applicants. Some info that would be helpful: (1) An estimate of when the backlogged cases will be heard. Maybe DHS has no idea, but at least tell us something. Apparently, many new officers and support staff have been hired. Will some of these people be dedicated to backlogged cases (I’ve heard that at the San Francisco office one or two officers will be assigned to backlogged cases). Is there any sort of plan to deal with the backlog? Leaving applicants completely in the dark is the worst possible way to handle the situation; (2) If a particular Asylum Office has an “expedite list,” it would be helpful to know the applicant’s place in line and how many people are on the list. Is she the third person or the 200th person? This would at least give some idea of the wait time, especially if DHS updated each person’s place in line as they move forward; and (3) It would be very helpful if the Asylum Offices explained why the backlog exists, what they are doing about it (hiring new officers), and what the applicants can do (apply for work permits, criteria to have a case expedited). While people like me can try to tell applicants what we know (and hopefully our information is more right than wrong), it is far better to hear it from the source. Each Asylum Offices has its own website, so it should be easy enough to publish this information.
Another thing the Asylum Offices could do to ease the pain of the backlog is to give priority to backlogged cases based on family reunification. As I noted last time, one justification for the backlog is that applicants can get their work permits while their cases are in limbo. Of course, the work permit is helpful (even crucial) for many applicants, but for people separated from spouses and children, reunification is the number one issue. This is especially true where the family members are in unsafe situations. I know that in a large bureaucracy, nothing is as simple as it seems, but why can’t DHS prioritize expedite requests where the applicant has a spouse or child overseas?
A third possibility is to dedicate one or more Asylum Officers in each office to work on backlogged cases. As I mentioned, San Francisco will assign one or two Officers to deal with the backlog. What about the other offices? At least if we could see some progress–even a little–with the old cases, it would give hope to the people who are waiting.
Finally, once a backlogged case is decided, DHS should give priority to any I-730 (following to join) petition filed by a granted applicant. Family separation is a terrible hardship. At least DHS (and the Embassies) can make up for some of the delay already suffered by moving I-730s for these cases to the front of the line. These applicants and their families have already waited long enough.
In a perfect world, asylum cases would be processed in the order received. However, I understand DHS’s concerns and the reasons for adjudicating new cases before old cases. By providing more information to backlogged applicants and by giving priority to people separated from their families, DHS can ease the pain caused by delay without implicating the policy concerns that brought us the backlog in the first place.
If you are an asylum seeker who filed an affirmative asylum case between about January 2013 and October 2013, you probably have not yet been interviewed, and your case has–seemingly–disappeared into a black hole. Meanwhile, other asylum seekers who filed after you are being interviewed and receiving decisions. So what gives?
The storage room for backlogged asylum cases.
As best as I can tell, in early 2013, the asylum offices nationwide essentially stopped hearing cases. The reason is because there was an influx of asylum seekers at the US/Mexico border. People who arrive without a visa at the border, and who request asylum, are detained. They then have a “credible fear interview” to determine whether they might qualify for asylum. If they pass the interview, they are generally released and told to return later to present their asylum case to an Immigration Judge.
Because of the large increase in the number of people arriving at the US/Mexico border (and being detained), the Department of Homeland Security shifted Asylum Officers from across the country to the border. DHS prioritized the border cases because those people were detained. Of course, detaining so many people is very expensive; it is also not so nice for the people who are detained. Assuming that no additional resources were available, I suppose it is difficult to argue with DHS’s decision to give priority to the border cases.
To deal with the increased demand, DHS also began hiring new Asylum Officers. The word on the street was that they planned to hire 90 to 100 new officers nationwide (which is quite significant) and that they would be trained and ready before the new year. Sure enough, we started to receive interview notices for our clients sometime in October (most of our clients interview at the Arlington, Virginia Asylum Office). Since October, our clients generally wait from one to three months from the time we submit the application to the date of the interview. That’s the good news.
But since they started hearing cases again, the Asylum Offices have been scheduling people on a last-in, first-out basis. In other words, cases filed after October 2013 are being heard, while cases filed between January 2013 and October 2013 are stuck in the “backlog.” There are two issues I want to discuss about the backlogged cases: (1) Whether there is anything that can be done if your case is backlogged; and (2) Why isn’t DHS doing the cases in the order received?
First, there are a few things you can try if your case is backlogged. For one thing, if 150 days have passed since you filed your asylum application, you can file for a work permit.
If you want to expedite your case, there is a procedure (at least in Arlington) to request an expedited interview. However, there are a number of problems with this procedure. The most serious problem is that it does not seem to work. When you request an expedited interview, your name is placed on a list. If another asylum applicant cancels her interview, you (theoretically) will be given her time slot. The problem is that not many people cancel their interviews, and many people are on the expedited list. Also, if you happen to get an expedited interview, you will have very little notice, and so there may be insufficient time to prepare.
Another possibility to expedite a case is to contact the USCIS Ombudsman. This is the government office that tries to assist immigrants and asylum seekers with their cases, and I have used it successfully a few times (though not for asylum cases). While I have a very high opinion of this office, its ability to expedite cases seems quite limited. One example of where it might be effective is if you have requested an expedited date due to a serious health problem (of you or a family member). After you have made the expedite request with the Asylum Office, and if that office does not expedite the case, the Ombudsman might be able to assist. In short, while the Ombudsman might be helpful for certain situations, it will probably not be able to assist in most cases.
I suppose you could also try contacting a Congressperson, holding a sit-in or going on a hunger strike. I doubt any of these methods will be effective, but it you have luck, please let me know.
The second issue I want to discuss is the logic behind DHS’s decision to hear new cases before backlogged cases. I have the impression (from talking to several people on the inside) that there was a heated debate within the government about how to deal with this issue. It seems there are several reasons why DHS decided to hear new cases before backlogged cases.
The main reason for hearing new cases first seems to be that DHS fears an influx of fraudulent cases. The logic goes like this: If cases are heard in order, delays will ripple through the system, and the average processing time for a case will dramatically increase. Cases will take much longer, but applicants will continue to receive their employment document six months after filing. This will create an incentive for aliens to submit fraudulent applications, which will further clog the system. By hearing new cases first, processing times are faster (except for the people left behind), and the incentive to file a fraudulent case and obtain a work permit is reduced.
Tied to this fear of more fraudulent cases is a fear of Congress. The House recently held hearings on asylum, and there is a general (and probably accurate) belief that the ultimate aim of these hearings is to restrict asylum. DHS believes that increased delays (and thus increased incentives for fraud) in the asylum system will make it easier for the Congress to pass more restrictive laws related to asylum. In other words, DHS does not want to play into the hands of the restrictionists by increasing processing times for asylum cases.
Finally, there is a general belief at DHS that delays are not all that damaging to applicants stuck in the backlog because such people at least have their work permits. If you forget about the stress and uncertainty, it is true that single applicants without children can work and live in the U.S. while their cases are pending. But for people who are waiting to be reunited with family members–especially when those family members are in dangerous or precarious situations–the delays can be deadly.
So that is the basic situation, at least as far as I can tell. Next time, I will discuss some possible solutions to the problem.
Last time, I wrote about the influx of credible fear applicants and how this is straining the asylum system all across the U.S. Since then, I’ve communicated with attorneys in different parts of the country, and they are confirming that Asylum Offices are interviewing very few asylum applicants anywhere. Instead, they are focusing on credible fear interviews. This means that applicants (including many of my clients) are stuck in what appears to be an indefinite limbo. Thus, the question: Is this the end of the asylum system as we know it?
I have never been accused of being an optimist, but I think the pretty clear answer here is “no.” Or, maybe more accurately, “no, but…” Here’s why:
“Don’t worry. The Asylum Office will get to your case before you’re my age. Probably.”
First, the Asylum Offices are in the process of hiring significant numbers of new officers. It takes time to train the new hires, but even so, we should start seeing their impact within the next six months. In addition, the rumors I’ve been hearing indicate that the Asylum Offices expect to begin shifting resources back to asylum relatively soon (I’ve heard various dates, including October 2013 and January 2014).
Second, the influx at the border will eventually slow down. If my theory (discussed in the prior posting) is correct and the new arrivals are being drawn here by the possibility of immigration reform, that “pull” factor will eventually go away. Either reform will pass or it will be killed by House Republicans. Once the issue is resolved, the added incentives it creates will likely disappear.
Third, and possibly most important, asylum is the law of the land, and there is nothing on the table to change that. Although there are certainly people and groups who would like to curtail or eliminate the asylum program, there really is no organized movement to change the law.
All that being said, I don’t expect that the current problems signal the end of asylum as we know it. However (and here’s the “no, but…” part), I suspect that the current problems will lead to a “new normal” in the asylum system. I also suspect that this new normal will not be as good as the old normal.
For one thing, there is some (disputed) evidence that aliens arriving at the border are becoming more sophisticated about making credible fear claims. Thus, the new normal might involve more resources devoted to credible fear interviews and less devoted to asylum cases (since Asylum Officers currently adjudicate both types of cases). Most likely, since many credible fear applicants are detained (at government expense), DHS will do the fiscally responsible thing and prioritize the credible fear cases. This could lead to increased waiting times for asylum seekers.
In addition, even if the credible fear caseload were resolved today, there would still be a large backlog of pending asylum cases to work through. Assuming no further disruptions, it will probably take years to interview and decide all the backlogged cases. And of course, new cases are coming in all the time.
Also, the world situation has been conspiring to increase the number of people seeking asylum in the U.S. Violence in Mexico is ever on the increase. Our disengagement from Iraq and Afghanistan has caused many people who worked and fought with us to flee for their lives. War in Syria and trouble in Egypt have created new refugee flows.
Finally, legislative and attorney-driven changes in the law have expanded the categories of people eligible for asylum–these days, asylum can be granted to victims of forced family planning, victims of FGM and domestic violence, people persecuted due to their sexual orientation, and people subject to forced marriage. I believe most of these changes are positive and life-saving, but when the number of people eligible for asylum expands, the number of people applying for asylum will likely go up. This further burdens the system.
All these factors point to a future where asylum cases are adjudicated more slowly than before. So while I don’t believe we are witnessing the end of asylum as we know it, I do think the new normal will be a more difficult environment for people seeking asylum in our country. In the third part of this series, I will discuss some policy responses to this new situation.
