Two Words I Never Thought I’d See Next to Each Other: BACKLOG SHRINKS!

by Jason Dzubow

It’s the season of miracles. One day’s worth of oil burns for eight days. A child is born to a virgin mother. The Eagles will return to the Super Bowl. OK, that last one is probably a bridge too far, but I know miracles happen because the asylum backlog is shrinking. Yes, shrinking.

As usual in asylum world, the news is not quite so straightforward, but let’s look at the newest data from the Asylum Division and try to break down what’s happening. The most recent report covers the months of July, August, and September 2018. The number of asylum cases pending in the United States is shown in the chart below:

July 2018 320,663
August 2018 320,314
September 2018 319,202

So between July and September 2018, the backlog shrank by 1,461 cases, or about 0.5%. Prior to July, the backlog was still increasing, though for a few months growth had been pretty flat. This means that more cases are being completed than are being filed.

Breaking News: Drop of water removed from ocean!

The first question is, Why is this happening? Looking at the data, it seems that the main reasons are that the number of new cases being filed is down and the number of cases being interviewed is up. Between July and September 2018, there were 23,257 new asylum cases filed. For the same period in 2017, there were 30,804 new cases filed. This represents a decrease of nearly 25%. Also, between July and September 2018, the Asylum Offices conducted 19,573 interviews. For this period in 2017, they conducted 15,405 interviews. Thus, the number of cases interviewed has increased by about 27%. The total number of cases completed during this time frame has also increased, from 16,852 in 2017 to 24,695 in 2018, an increase of almost 47%.

Why have the number of new cases gone down? The most obvious answer is that fewer people are able to get to the United States. Between the “Muslim ban,” the generally hostile attitude towards foreigners, and the Trump Administration’s machinations at the border, it is more difficult for people to come to our country. For example, in September 2017, the State Department issued 652,035 non-immigrant visas worldwide. During September 2018, the State Department issued 620,158 visas, which represents about a 5% decrease. However, for countries that “send” us asylum seekers, the drop appears much more dramatic. Take Venezuela, the top source country for asylum seekers. The number of B visas issued for Venezuelans dropped from 1,861 in September 2017 to 1,060 in September 2018, a drop of 43%. If fewer people are coming here, especially from troubled countries, it stands to reason that we will see fewer asylum applications.

Also, the Trump Administration has made its attitude towards non-Americans quite clear. It has also ginned up hostility and anger more generally. In a case of cutting off the nose to spite the face, I suppose making our country a less attractive place to live means that fewer people will want to come here.

Why have the number of interviews gone up? One explanation is that fewer Asylum Division resources are being deployed to the border, and so this is freeing up officers to interview affirmative asylum applicants.

Anyone who arrives at the border (or an airport) and who states that they need protection should receive a Credible Fear Interview (an initial evaluations of asylum eligibility). These interviews are conducted by Asylum Officers. When the officers are doing CFIs, they are not working on “regular” asylum cases. The large number of CFIs is widely believed to have led to the backlog. However, here we run into an anomaly. In FY2017, Asylum Officers issued 79,710 CFI decisions. In FY2018, they issued 97,728 decisions, an increase of nearly 23%. Somehow, despite a significant increase in CFIs, the Asylum Division managed to process more affirmative cases.

My guess is that this “anomaly” is the result of increased people power. The Asylum Division has hired large numbers of Officers who deal exclusively with CFIs. Many of these Officers perform interviews remotely (there is an office in Arlington, Virginia dedicated to CFIs). So perhaps this explains how the Asylum Division was able to make progress on  affirmative cases while still processing large numbers of CFIs.

Aside from hiring more Officers, the Asylum Division has tried to increase productivity by identifying cases that have been filed more than 10 years after the applicant arrived in the United States, and to offer those applicants an opportunity to skip the interview and go directly to Immigration Court. Some applicants have filed asylum primarily as a vehicle to get into court, where they will seek other relief (usually Cancellation of Removal). However, the impact of this plan seems fairly marginal. The number of cases referred to court without an interview during the three-month period was 1,275 in 2017 and 1,680 in 2018. The total number of cases referred to Immigration Court based on a filing deadline referral (i.e., the applicant missed the one-year asylum-filing deadline, failed to demonstrate an exception to the rule, and probably received a truncated interview) was 5,138 in 2017 and 6,684 in 2018. Also, the number of “no shows” increased from 2,072 in 2017 to 3,040 in 2018. Collectively, all this probably made a modest contribution to increased productivity.

All this leads to the final, and probably most important question: How will all this affect people who are stuck in the backlog? I think the answer here is, It depends.

First and most obviously, it depends on whether this trend continues. I think there is good reason to believe that the trend will continue. Between the Trump Administration’s efforts to block people from coming to the U.S. and the Asylum Division’s seeming ability to simultaneously process CFIs and affirmative cases, I expect we will see continued progress on the backlog.

Second, it depends on which particular Asylum Office we are talking about. Some offices are dealing with their backlogs better than others. For example, in September 2018, some offices completed more cases than they received (Chicago, Los Angeles, Newark, and New York). Other offices received more cases than they completed (Arlington, Boston, Houston, Miami, New Orleans, and San Francisco). This changes month-to-month, and so it is difficult to guess how a particular case will ultimately fare, but you can see the data for yourself and make your own predictions.

Of course, all this can change quickly, depending on the state of the world, our government’s policies, and the ability of the Asylum Division to keep pace with new cases. But for now at least, the backlog is shrinking. For those stuck waiting, I suppose that is a rare bit of good news.

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The Ineffable Backlog (and a Bit of Good News)

by Jason Dzubow

Someone–maybe a new age guru–once defined for me the Buddhist concept of time: Once every hundred years, a monk walks up to a mountain and brushes it lightly with a feather. In a short time, the mountain will be eroded to nothing.

This is also good way to think about the asylum backlog. If you assume that the mountain is growing. And you assume that the monk sometimes forgets to show up.

If you’re stuck in the backlog, you don’t need anyone to tell you how slow it is. The wait is particularly painful for asylum seekers separated from spouses and children, but it is bad for everyone. The effects are psychologically and financial, lives are put on hold, career and education opportunities are missed, time with loved ones is lost forever. People who are often already traumatized are re-traumatized by the endless waiting and uncertainty.

Things that move faster than the asylum backlog.

So what’s happening with the backlog lately? The latest data we have is from June 2018. It’s not always easy to understand the statistics from the asylum office, at least for me, but here, I will discuss what we know.

First off, the backlog, which has been growing for years, seems to have leveled off this Spring. Between April and June 2018, the backlog grew from 319,056 cases to 319,563 cases. That’s a growth rate of less than 0.1% per month. Does this mean that the Asylum Division is finally getting a handle on the backlog? Maybe, but I think it is still too soon to know. One issue is that when the system changed from FIFO to LIFO in January 2018, the volume of new cases dropped. Now that lawyers and applicants have mostly adjusted to the new system, we might expect a higher volume of cases post-June. Also, it seems more people have been arriving at the Southern border lately, and this likely will divert resources that would otherwise have been used to adjudicate affirmative asylum cases. In any event, we’ll have to keep an eye on the overall numbers to see whether the trend from this Spring continues.

Second, from the chart below, which contains information from June 2018, you can see that some offices are doing better than others in terms of interviews and decisions. A number of offices are completing more cases than they are receiving (Chicago, LA, Newark, NY, and San Francisco). Logically, you would think this means that these offices are interviewing all new cases that come in, and making progress on backlogged cases. But I am not so sure that is true. If you look at the number of interviews actually conducted, you can see that only Los Angeles and Newark are interviewing more cases than they are receiving. So for me at least, how many new cases and backlogged cases are being interviewed and decided is still something of a mystery (also, remember, these numbers are just a snapshot from one month–June 2018).

 

Office New Cases Interviews Scheduled/Conducted Cases Completed
Arlington 885 637/374 664
Boston 259 292/160 221
Chicago 611 690/507 750
Houston 752 397/253 440
Los Angeles 867 2,145/1,113 1,230
Miami 2,046 1,494/929 1,298
Newark 692 1,635/911 1,179
New York 946 1,494/815 1,180
New Orleans 204 374/117 201
San Francisco 605 1,147/646 730
TOTAL 7,867 10,307/5,825 7,893

 

There are other mysteries contained in these numbers. Why are so many interviews scheduled, but so few actually conducted (less than 57% of scheduled interviews were conducted in June 2018)? Some interviews are cancelled by the Asylum Offices; others (more) are cancelled by the applicants. You would think that under LIFO, most applicants would file a complete case and be prepared for an interview when it comes, but maybe not (and if you’re wondering, the reschedule rate was about the same under FIFO).

Another anomaly–though not quite a mystery–appears in the numbers for the Miami Asylum Office, which is receiving far more new cases than any other office. The reason? It may be because Venezuela has surpassed all other countries as a source nation for asylum seekers, and I suspect that these applicants largely land in Miami. Indeed, if you look at the top sending countries for asylum seekers, you will see that for the last three months (at least), Venezuelans make up more than 25% of all affirmative asylum seekers in the United States.

One final point for today. I posted previously about the declining grant rate for affirmative asylum cases. At that time (February 2018), the overall approval rate for FY 2018 cases was 26%. The most recent numbers paint a similar picture. The overall approval rate for April 2018 is 23.5%. The rate for May is 26.3%, and for June is 25.0%. However, if we remove from the mix cases where the applicant did not show up for the interview, where the applicant declined an interview (and went directly to court to seek other relief), and where the application was denied due to the one-year bar, the situation is better: The approval rate under those circumstances for April 2018 is 41.4%. May is 44.5%, and June is 43.0%. So this means, generally speaking, if you file for asylum on time, and you show up to your interview, you have a decent chance of winning your case. Let’s call that good news, and end there for today. Au revoir!

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A Beautiful Application Is a Successful Application

by Jason Dzubow

A poet once said, “It’s not how you feel; it’s how you look. And you look mah-velous!”

What does this gentle wisdom have to do with asylum cases? Simply this: Whether you have a strong case or a weak case, if you present your case in an organized and neat fashion (i.e., if you make it look marvelous), you are more likely to be granted relief.

How do I know this is true? I really don’t. I just made it up. But it seems true. Plus, I have talked to Asylum Officers and Immigration Judges, and I know they sometimes become frustrated with disorganized applications. Also, it makes sense–if you make the decider’s job easier, you are more apt to get a good decision. So how should an asylum application look?

Yours truly, several years before being voted “Best Looking Asylum Lawyer in Washington, DC.”

The first thing to know is that there are different rules for the Asylum Office and the Immigration Court. The Asylum Office rules are more lenient. When we prepare evidence for the Asylum Office, we basically follow the Immigration Court rules. In this way, we are prepared in the event that the case goes to Court. Also, the Court rules provide good guidance for how to organize a packet of documents.

First, let’s talk about Asylum Office cases. For such cases, we include a cover letter. This letter is short, and simply explains what type of application we are filing. If there are any issues of particular note, we might mention those in the cover letter–for example a one year bar issue, a criminal conviction or a prior asylum application.

Next, we include the packet of documents. We do not send any original documents; we submit copies (we have the client bring any originals to the interview). We also keep a copy of the entire packet for ourselves. Per Asylum Office rules, we submit two copies of the entire packet of documents. Each page of the packet is numbered. I put the numbers in the bottom center of each piece of paper. Also, each individual exhibit is labeled with a letter (Exhibit A, Exhibit B, etc.). In front of each exhibit is a separate page with a tab (A, B, C, etc.). If the packet of exhibits is tabbed and paginated, it is easy for the officer to find what she needs.

On top of the packet of exhibits, we include an index. The index lists each exhibit by letter and page number. I also include a brief description of each exhibit, so that the officer can read my summary, rather than a (sometimes) lengthy document. An abridged example of how we do the index is here: Example Index

The exhibits we typically submit, aside from the original I-589 form, include copies of: All passports, the applicant’s affidavit, birth certificate, marriage certificate(s), divorce documents, national ID cards, identity documents for spouse and children (passports, birth certificates, national ID cards), education documents (diplomas, transcripts, awards), employment documents, any criminal or arrest documents (from the U.S. or overseas), police reports, medical reports (including forensics reports about scars or psychological trauma), membership documents for political, religious or other organizations, letters from witnesses, threat letters or evidence of threats, relevant photos (of political activities, injuries, etc.), relevant news articles, and country and human rights reports. Any documents not in English need to be translated with a certificate of translation. Of course, the documents we submit vary, depending on the case and what we need to prove. But the format is always the same.

Also, it is a good idea to submit the exhibits on time. These days, under LIFO, we usually complete the entire case and submit everything together with the I-589 application (since we often-times receive a quick interview date). However, if you are submitting documents after the case has already been filed, make sure your Alien number is on the cover page and the index, and make sure everything is submitted on time. Some asylum offices want your exhibits at least one week prior to the interview. You can contact the local asylum office to ask about the filing rules.

If you have a case in Immigration Court, the rules are more strict. First of all, you need to submit one copy of everything to the Court and one copy to the DHS Office of the Chief Counsel (the prosecutor). Second, you need to follow the rules related format, which you can find in the Immigration Court Practice Manual (follow the link called “OCIJ Practice Manuel;” chapter 3 and appendices F and G are particularly useful for format). Also, you need to submit a witness list (check chapter 3 of the Practice Manuel, page 57-58). The list of exhibits will look similar to what I described above for the Asylum Office index. For non-lawyers, this is all a bit much, and for this reason, if you have a case before the Immigration Court, you would do well to find an attorney to assist you (if you cannot afford a lawyer, you might be able to find one for free).

One last tip: If possible, submit all documents by hand (and bring your copy of the exhibits so the Asylum Office or Court can stamp it with a proof of service) or by certified mail. It is common for evidence to get lost, and so it is a good idea to have proof that you submitted the evidence.

Whether your case is before the Asylum Office or the Immigration Court, it will benefit you to submit a neat, well-organized packet of evidence. And by the way, darling, you look mah-velous!

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Mandamus for the Rest of Us

by Jason Dzubow

This posting is by David L. Cleveland, a staff attorney at Catholic Charities in Washington, DC. David was Chair of the AILA Asylum Committee from 2004 to 2005, and has secured asylum or Withholding of Removal for people from 47 countries. A graduate of the University of Rochester and Case Western Reserve University School of Law, he has published articles about asylum in Bender’s Immigration Bulletin, ILW.com, AILA, and Lexis-Nexis.

When I was in high school, I liked music by a British group called “The Kinks.” One of their songs was “Tired of Waiting.”  It goes: “Tired of waiting, Tired of waiting for you, So tired….”

Now, I am an immigration lawyer. I file cases. I wait. I get tired from time to time. My clients, of course, suffer more than me. They are really tired of waiting.

What can be done about this?

David Cleveland, pictured here listening to the Kinks.

First, I try to determine if the application is, or is not, in the hands of a real human being. There are cases that “slip through the cracks.” Supervisors at USCIS have told me–more than once–that at times, cases get “lost.” For example, an asylum case file is assigned to Officer “A” in January 2015. His boss tells him to make a decision. But, six months later, Officer A quits his job. His boss realizes that the case should be assigned to a new officer, but it doesn’t happen. The case is not re-assigned. It sits in a box in the asylum office, but no officer is assigned to it.

In such a case, the applicant can make an inquiry at the asylum office, and ask, “What is the name of the officer assigned to my case?” The applicant can ask at the asylum office reception window, “Where is my case? In whose office is it?” If the case has not been assigned, the applicant’s inquiry might cause it to be assigned. The applicant can also email the Asylum Office, but sometimes, it is more effective to go in person.

Second, the applicant can try to force the Asylum Office to make a decision by filing a complaint in the local U.S. District Court. The theory of the case is simple:

(1) Congress enacted a law–the Administrative Procedures Act–that provides that a federal court “may” compel an agency to act in a case if it is “unreasonably delayed.”

(2) The applicant filed–for example–an asylum application with the USCIS more than three years ago, and there has been no action on the application.

(3) A three-year delay is “unreasonable.”

Therefore: Judge, make the agency do something! Make them adjudicate the case!

Is a three-year delay unreasonable?

Many judges have said “No, a three-year delay is not unreasonable. Applicant loses.”

In fact, applicants waiting more than three years have been denied relief: A judge in Missouri denied relief to an applicant who had been waiting six years. A California judge agreed: Six years is not unreasonable. A judge in New York denied relief in a case involving a five-year delay. A DC judge agreed that five years was not unreasonable.

But, another DC judge said 2.75 years was too slow. SAI v. Dep’t of Homeland Security, 149 F. Supp.3d 99, 121 (D.D.C. 2015) (airport patron who alleged harassment at airport filed an administrative complaint).

In another case, Haus v. Nielsen, 2018 WL 1035870 (N.D. Illinois 2018), the government filed a motion to dismiss, arguing that a three-year delay was reasonable. The Judge denied the motion, stating that he was not “prepared to hold” that a three-year delay was reasonable. He did not say it was unreasonable, either. This case illustrates the confusion and difficulty judges have with these kinds of cases.

What happens after a complaint is filed in federal court?

A copy of the complaint is delivered to the agency (in an asylum case, the agency is USCIS). The agency then gives the complaint to its lawyer; very often, this is a lawyer at the Department of Justice (“DOJ”). The Judge sets a deadline for the agency to file a response with the court–often 60 days after the complaint was filed.

The DOJ lawyer could file a motion to dismiss the case, citing precedent that holds a six-year delay is reasonable.

Or, the DOJ lawyer could telephone the agency, and ask, “Why haven’t you made a decision on this case? Why don’t you make a decision soon? If you do, then I do not need to file a motion with the Court.” Such phone calls, at times, result in agency action.

I am aware of three recent cases in the Washington, DC area: (1) In January 2017, an asylum applicant filed a complaint in court. He was granted asylum in March; (2) In June 2017, an asylum applicant filed a complaint. USCIS interviewed the applicant a second time, and then denied asylum in September; (3) In June 2018, the applicant filed a complaint. He was granted asylum in July. In these three cases, the agency did not file a motion to dismiss. Instead, the agency did what the applicant wanted by adjudicating the case (even if the result was not always what the applicant had hoped for).

Each case is different. Many applicants who file complaints lose. But some win. If you would like more information, contact me at David.Cleveland@cc-dc.org.

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An Open Letter to the “Complicit” Asylum Officer

by Jason Dzubow

By now, you’re probably familiar with the famous, anonymous op-ed in the New York Times, written by a high-level member of the White House staff who is “resisting” President Trump. But in asylum-world, there’s another anonymous article getting attention. It’s an interview in Topic Magazine with an un-named asylum officer.

The interview is sad and poignant. It’s obvious that the officer cares about his (or her) job and the individuals who are seeking protection in the United States. With the advent of the Trump Administration and it’s increasingly hostile approach to asylum seekers, the officer is facing a crisis of conscious: “I struggle every single day with how to determine whether I’m causing more harm than good,” the officer states.

Asylum Officers review the latest Trump Administration policy memo.

One example the officer gives is the implementation of the infamous “zero tolerance” policy at the border, where parents and children were separated, often by trickery, and with no real plan for reunification:

I was interviewing moms in detention who were separated from their children. [U.S. government officials] took their children away from them. All that they wanted from me was to know where their kids were. They would ask me, “Where are my children?” But I was told not to tell them where their kids were. I was told not to tell them. When I say I’m complicit, this is what I mean.

Obviously, looking a desperate mother in the eyes and declining to give her information about her children is a soul-crushing experience. And, according to the anonymous officer, the Administration’s policies are having a deleterious effect on asylum officers:

People in the office are demoralized. I think the job was hard to begin with. There were already very high expectations, very rigorous screenings. Now, there is a fear among upper-level officers that the [asylum] program could get cut altogether, so everyone is trying very hard to not make any mistakes so that the program doesn’t get cut. My worry is that this will lead to people who should get asylum not getting asylum…. [At] this point, I can’t yet fathom what [bad thing] will happen next. I don’t want to, but I’m sure it will come. I never thought they would take kids away from their parents. What else could they do? They did that, so they could do anything.

What should a decent, moral person do in a situation like this? For me (as an outsider), the answer is not so clear. I have friends who have left government because they could not contribute to the goals of the Trump Administration. Other friends have chosen to stay, to do whatever good they can. Which approach is better probably depends on the individual and her circumstances, and I am quite sure it is not an easy decision either way.

If it were me, one factor in deciding whether to stay or go would be the impact of my choice on the asylum system. I have written this before, but it bears repeating here: In many ways our asylum system is sacred. Our country grants protection to strangers who arrive on our shores seeking refuge from danger. We offer asylum in part because it serves our national interests. But we also offer asylum because we are generous and good. By helping others, we help define ourselves. My decision to leave would depend in part on whether I thought my departure would make “the system” better or worse.

Asylum Officers, Immigration Judges, and government attorneys implement the asylum law. Without them, there would be no humanitarian immigration system. In my experience, most of these people are hard working. The majority are clearly committed to the rule of law, and to Justice (though we don’t always agree on what “Justice” looks like). They take their responsibilities seriously and recognize the life-changing nature of their work. They are the ones who have to make the difficult choices (choices that lawyers like me do not have to make): Whether to grant a close case or deny a sympathetic one that simply does not qualify for relief; whether to give an applicant the benefit of the doubt; whether to grant or deny as a matter of discretion. These are the tough choices that ultimately allow “the system” to continue functioning.

So it seems to me, the question for the anonymous asylum officer and many hundreds like him, is whether there is still room in the system–and in his particular job–to do Justice. In the case of our officer, it appears that such room still exists.

Even as the Trump Administration is working overtime to narrow the path for asylum seekers, it is still possible to do good. As the anonymous officer notes, “there is still space to be fair, and to provide opportunities for people.” And it’s not just fairness; it’s also kindness. Speaking about female asylum seekers detained at the Southern border, the officer says:

I think that oftentimes for the women who are detained at those facilities, [my interaction with them] will be the first moment that someone will be kind to them. The very first time in the whole process. They are not treated well at the border, by other agents in other agencies….

The value of such kindness is difficult to overstate. It can be the difference between hope and despair. Even for people who are ultimately denied, the fact that they were treated with respect and fairness makes a real difference. I have seen that myself many times.

As an attorney who represents asylum seekers, I hope that the anonymous officer will stay. When good people depart government service, the rule of law is degraded. The decency and compassion that have been–to borrow a word–the loadstars of our asylum system, are further eroded. And of course, the erosion of our humanitarian immigration system also marks a degradation of our country’s humanity.

These days, many good people in government are conflicted. The anonymous officer states, “I think about it [quitting] all the time.” I don’t blame the officer for this. It is painful to compromise one’s morals. But now, more than ever, I think we need people like this officer to stay. To do their jobs. And to pursue Justice.

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When the Counter-Terrorism Unit Comes Calling

by Jason Dzubow

My colleague Ruth Dickey recently accompanied one of our clients to an interview with the ICE Counter-Terrorism Unit, after the client was ordered to report for questioning. She writes about her experience here:

ICE has been in the news lately for its role in apprehending migrants, detaining parents, and increasing deportations. For the public, the agency has become synonymous with the current administration’s aggressive approach to enforcement. Rightly or wrongly, ICE agents are portrayed as a boogeymen, and the #AbolishICE hashtag continues to trend ever upwards.

Ruth Dickey, immigration attorney extraordinaire.

What many people do not know is that ICE has two divisions that work with the public: Enforcement and Removal Operations (“ERO”), which is responsible for most of those gut-wrenching daily headlines, and Homeland Security Investigations (“HSI”). HSI is usually seen as a “good guy” agency. Agents track down terrorists and pedophiles, counter human trafficking, and help interdict illegal drugs. They do important work that protects us from transnational criminal organizations and other bad actors. When ICE issues a press release about a success story, it’s usually for something that HSI has done. The fact is, HSI’s work is generally more brag-worthy than anything ERO is doing.

HSI, it turns out, seems a bit embarrassed to be associated with the notorious ERO. Indeed, a group of HSI Special Agents recently published an open letter to DHS Secretary Kirstjen Nielsen requesting to break off from the rest of ICE. In the letter, the agents explain that,

HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security. Furthermore, the perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement.

The agents complain that cities and towns are unwilling to partner with HSI unless they hide the agency’s connection with ICE. It seems that HSI is eager to maintain the image of a law enforcement agency that helps, not hurts. Its association with ICE makes HSI less effective because localities are reluctant to work with HSI agents.

Give this background, we were surprised recently when one of our clients was contacted by HSI’s National Security Group-Counterterrorism and Criminal Exploitation Unit. Our client had come to the United States for an education program. He had been thoroughly vetted prior to arrival, and was bright and ambitious enough to merit a scholarship funded by the U.S. Department of State.

While he was in the U.S., our client was outed as a gay man and he received several death threats from back home. All this took place shortly before his student status ended, and he hired us to file for asylum. His case was filed a few weeks after his classes finished (meaning that he had just fallen out of status). By the time HSI contacted him, our client’s asylum application was already pending, and he had received his receipt.

Our client is law abiding, and doesn’t have so much as a speeding ticket, so it was strange that HSI would have an interest in him, much less the counterterrorism unit.

I attended our client’s HSI interview in a drab office building near the airport. I went there not knowing what to expect. The agents obtained basic biographic information and took out client’s fingerprints. Then the agents told us that they were arresting the client, releasing him, and issuing him a notice to appear in Immigration Court (an NTA). In the ensuing discussion, the agents told us:

  • That the Immigration Court would decide our client’s case more quickly than the Asylum Office (apparently, the agents weren’t familiar with the LIFO policy, which went into effect in January).
  • That sending the case to court was not a waste of resources, since the case might have been referred to court anyway (that is, the agents inappropriately speculated about the merits of the case, even though they seemed to know nothing about it).
  • That our client would be required to attend regular check-ins at ERO to prove he was not a flight risk (despite his strong asylum claim, which he filed voluntarily).
  • Our client had to surrender his passport, and the agents would not give him a receipt or a certified copy of the document. Thus, he had no evidence that his passport was in HSI’s possession (inappropriate and incredibly inconvenient, given that the passport was his only form of ID).
  • That I (the lawyer) should not question the agents’ actions, since their children receive death threats (you would think that these alleged threats might generate some empathy for asylum seekers, but I digress).

Technically, the agents are correct that they have the power to send our client to court since he was already out-of-status. But here, I want to focus on why this approach is inefficient and inhumane.

First, our client already had a pending affirmative asylum application with USCIS at the time of his “arrest.” Such cases are less stressful on the applicant, as they consist of a (theoretically) non-confrontational interview. Contrast this with the adversarial hearing in Immigration Court. Also, under the new LIFO system, most new affirmative asylum cases (like our client’s) will be decided much more quickly than the average asylum case in Court. Further, Asylum Office cases are cheaper for the applicant in terms of lawyer’s fees, since such cases require less attorney time than Court cases.

Second, from the government’s perspective, affirmative asylum cases are less expensive and more efficient than Immigration Court cases. For one thing, the Asylum Office is funded by USCIS user fees (meaning, when you pay a USCIS fee, some of the money goes to the cost of running our affirmative asylum system). Immigration Court cases, on the other hand, are paid for by taxpayers. Court cases also involve more people: The Immigration Judge, the court-appointed interpreter, the Court staff, the DHS attorney, and—in my client’s case—ICE agents. Asylum Office cases involve fewer people, and so are less expensive. Indeed, the raison d’etre for the Asylum Offices is to reduce the burden on Immigration Courts by resolving asylum cases before they land in proceedings.

Third, one main purpose of the Immigration Court is to deport people who have no legal right to be in the United States. This includes people convicted of crimes and people who pose a threat to national security. The more the court system is clogged with cases like our client’s, the less able it will be to deal with people who may be a danger to our country.

So here is my advice for HSI: If you don’t want to be “perceived as targeting undocumented aliens,” then maybe you should try not targeting undocumented aliens, like my client. HSI should consider efficiency and humanity before tossing affirmative asylum applicants into the Immigration Court system merely because they are out of status. If they want to do the right thing, HSI can start by revoking our client’s NTA and allowing the Asylum Office to adjudicate his case.

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An Update on LIFO and the Asylum Backlog (or, The Fix that Wasn’t)

by Jason Dzubow

On January 29, 2018, the Asylum Division changed the way it prioritizes cases. Since 2015, asylum applicants were being interviewed in the order that their cases were filed. Oldest cases first, followed by newer cases (“first in, first out” or FIFO). During this period, the number of people waiting for an interview—the backlog—grew and grew.

Now, under the new system, cases are interviewed on a “last in, first out” basis or LIFO. This is basically the same system we had prior to 2015. The backlog began under the pre-2015 LIFO because the Asylum Offices did not have the people-power to interview everyone who applied for asylum. The result: Some cases were interviewed, while others “disappeared” into the backlog. Because this was unfair to “disappeared” applicants, the Asylum Division eventually switched to FIFO, which had the virtue of being more fair, but did nothing to ameliorate the backlog.

Most experts believe the backlog will be resolved by the late 25th century. Biddi biddi biddi.

Under the Trump Administration, what’s old is new again, and so we are back to LIFO. How is LIFO working out? Some new data from USCIS gives us an idea. The short answer, if you don’t have time to read this whole post, is that the backlog is not about to be resolved any time soon. So if you are currently stuck waiting for an asylum interview, you might want to get comfortable, as you’ll probably be waiting for a while (or you can try to expedite your case). If you have time to keep reading, let’s look at where we are, and how you can best navigate through LIFO-land.

First, as of March 31, 2018, there were 318,624 asylum applications pending in the backlog. That’s “applications” not “applicants.” Since some applications include multiple family members, the number of people stuck in the affirmative asylum backlog is probably quite a bit higher than 318,624.

In response to the backlog, the Asylum Division has taken several actions. For years now, they’ve been staffing up. According to a recent report from the USCIS Ombudsman, since FY 2016, the number of Asylum Officers has increased from 533 to 686 (and they continue to hire – if you want to sign up, check out this job posting). Since we’ve dramatically reduced the number of refugees coming to the U.S., Refugee Officers have more free time, and so they are being rotated through the Asylum Offices on 12-week stints. We are also expecting a new National Vetting Center (in 2019 or 2020) that will deal with security checks and fraud issues, in order to free up more time for Asylum Officers to do their work. All these changes should allow the Asylum Offices to process more cases.

We also now have LIFO. Under this system, the Asylum Offices prioritize cases as follows: First priority are rescheduled interviews, whether the interview was rescheduled by the Asylum Office or the applicant. Second priority are asylum applications that have been pending less than 21 days. This does not mean you will receive an interview within 21 days of filing. Rather, cases less than 21 days old will receive priority to be scheduled for an interview. Third priority are all other affirmative cases, including the 318,624 currently in the backlog.

According to the Ombudsman’s report, not all new cases will receive priority for an interview:

Cases subject to interviews at “circuit ride” locations (generally a USCIS field office situated closer than the asylum office to an applicant’s residence) will not fall under the 21-day time frame. Rather, the Asylum Division will schedule these cases for interviews as resources permits.

This means that if you want a quick interview, you have to live in a location that is covered by one of the main offices or a sub-office (Arlington, Boston, Chicago, Houston, Los Angeles, Miami, Newark, New York, New Orleans or San Francisco), as opposed to a “circuit ride” location, which is a USCIS field office that is visited periodically by Asylum Officers (there are many, but some examples are Atlanta, Buffalo, and Seattle). I do not know of an on-line listing of areas covered by circuit ride locations, but I suppose you can email your Asylum Office to ask. If you live in a circuit-ride area, you can ask to be interviewed in a main office–sometimes they accommodate such requests.

Assuming you file at one of the main or sub-offices, the likelihood of actually receiving an interview (as opposed to disappearing into the backlog) varies by office. The chart below is based on very preliminary data from the Asylum Division. It shows the (very approximate) likelihood of having your case interviewed in each office.

In the chart, “New Cases Filed” is the number of asylum cases filed in that particular office for March 2018. “Interviews” is the number of interviews actually conducted in March 2018 (as opposed to the number of interviews scheduled and then canceled, which is quite a bit higher). The percentage figure is the rough likelihood that an applicant in that particular office would have received an interview in March 2018. And the “Completed” column shows how many cases were completed during the month, which—when compared to the number of cases filed—gives an idea of how much the backlog grew or shrunk in that office for March 2018 (the +/- in the Completed column).

 

Office New Cases Filed Interviews Completed
Arlington 920 494 / 54% 408 / +512
Boston 289 132 / 46% 178 / +111
Chicago 550 675 / 100% 550 / +0
Houston 751 583 / 78% 504 / +247
Los Angeles 997 708 / 71% 1,243 / -246
Miami 2,219 798 / 36% 920 / +1,299
Newark 668 792 / 100% 865 / -197
New York 802 690 / 86% 883 / -81
New Orleans 206 166 / 81% 280 / -74
San Francisco 653 529 / 81% 687 / -34

 

There are some caveats to this chart. First, I compare new cases filed with cases interviewed to determine the likelihood that you will receive an interview in that particular office. This is an apples/oranges comparison since we don’t know how many of the interviews were newly filed cases, as opposed to rescheduled interviews or expedites. Worse, the cases interviewed were probably filed in January or February, since it takes some time to actually schedule the interview. This makes the comparison even less reliable. Second, this data is for only one month, and March was probably not a “normal” month, in that the system was still adjusting to the change from FIFO to LIFO. So how useful this chart is for predicting the likelihood of an interview going forward, I do not know. Finally, this chart was prepared by me. Using math. Since I’m no Ramanujan, you should take all this with a big grain of salt.

That said, this is the best data we have, and maybe we can draw some tentative conclusions. For one, the backlog is generally growing, not shrinking. However, this varies by office. If your case is stuck in an office where the backlog is growing, it is unlikely that you will get an interview any time soon. If you are in an office where the backlog is shrinking, maybe you will eventually receive an interview. Also, if you are a new applicant and you want an interview quickly, you may be better off filing in Chicago or Newark, since they seem to be interviewing pending cases faster than they are receiving new cases (conversely, if you want a slower interview schedule, you are better off living in an area covered by a circuit ride location or an office where the backlog is growing). Again, all this is quite preliminary, and we will have to see how things progress when they release the next batch of data in a few months.

Another bit of information we can glean from the Ombudsman report is that local asylum offices “report a 25 percent drop in affirmative receipts in the immediate aftermath of the change to LIFO scheduling.” The implication/hope is that the new LIFO system is deterring people from filing frivolous asylum claims. I think there is another, more likely explanation, however. In my office, for example, when the Asylum Division switched from FIFO to LIFO, we stopped filing cases for a few months in order to adjust how we filed (under FIFO, we filed a bare-bones application, consisting of the I-589 form and the passport; under LIFO, we file a complete case, which takes much longer to prepare). My guess is that once people adjust to LIFO, there will be little change in the number of cases being filed (of course, since fewer aliens are coming to the U.S. these days, we can expect fewer asylum applications for that reason).

One final piece of news is a pilot program to refer one-year bar cases directly to the Immigration Court without an interview. The Asylum Division has identified up to 50,000 pending cases where the applicant entered the U.S. more than 10 years before filing for asylum. Such people may have filed for asylum in order to be referred to Court, where they will seek other relief (most notably, Cancellation of Removal). So far, the Asylum Division has contacted about 1,500 such people, and given them the option to skip the interview and go directly to Court. Depending on the case, and the person’s goals, this may be an attractive option for some, though I suspect anyone with a real fear of returning to the home country will prefer to have an asylum interview.

So there you have it. It is probably too soon to draw any firm conclusions from the data at hand, but based on what we know so far, it seems likely that the backlog will be with us for the long term. Keeping informed about the Asylum Office’s statistics and policies may allow some applicants to increase their chance for an interview. As more data becomes available, I will try to post that information here.

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Immigration Judges and Asylum Officers Protect Us All

by Jason Dzubow

I’ve never been a big fan of the Martin Niemöller poem about the Nazi era, “First they came…” You know the one:

First they came for the Socialists, and I did not speak out – Because I was not a Socialist,
Then they came for the Jews, and I did not speak out – Because I was not a Jew,
…yadda, yadda, yadda…
Then they came for me – And there was no one left to speak for me.

I have two complaints about this poem. First, it implies that the main reason to “speak out” on behalf of others is self-interest: If I don’t help others, no one will help me. That seems a weak foundation for a system of moral behavior. Second, I don’t think Pastor Niemöller’s basic point—that eventually a malicious government will come for everyone—is convincing to the people who need convincing. Nazi supporters certainly did not think that their government would turn against them. And the fact is, Hitler did not persecute most of the people who stood by his side (he caused them great misery, but that is another story).

Due Process of Law…

Fast forward to our own time, and President Trump’s attacks on non-citizens. Last month, the President announced his opposition to due process of law for asylum seekers: “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” he wrote on Twitter. And a series of new legal, policy, and personnel changes represent clear moves in the direction of weakening due process protections for non-citizens, and making it easier to deny cases—including asylum cases—without a full review of the applicant’s claim.

Why should we be so concerned about due process, you ask? For one thing, due process is a foundational principle of our democracy (and its origins go all the way back to the Magna Charta). The Founding Fathers were rightly concerned about the exercise of government power against individuals. Due process provides a procedural check on that power—the government’s authority cannot be unleashed in a criminal, civil or immigration case without first ensuring that the use of that power is lawful. In the case of non-citizens, the Immigration and Nationality Act (“INA”) provides certain legal rights to non-citizens, including the right to apply for asylum. The Supreme Court has recognized—repeatedly—that aliens are entitled to due process of law before they can be deported.

What does due process look like in the immigration context? The protections afforded to non-citizens vary, depending on many factors, including the type of case, the relief sought, and whether the alien is inside the U.S. or seeking admission at the border. In the asylum context, an alien who is physically present in the United States or at a border has the right to seek asylum. That is the law (specifically INA §208). In most cases, asylum seekers are entitled to a full hearing to evaluate their claims. However, the Trump Administration has been working hard to eliminate due process protections, and reduce the system’s safeguards (for a sobering analysis of the Trump Administration’s degradation of due process for non-citizens, check out this article by the brilliant Jeffrey S. Chase). But thus far, the Trump Administration has not changed the immigration law—that requires an act of Congress.

Assuming that Congress does not act (usually a safe assumption), some measure of due process will remain for all asylum seekers—even those at the border. But of course, reducing due process means increasing the likelihood that legitimate claims will be denied, and that some aliens will be returned to face harm.

Dupe Process of Law.

All this brings us back to Pastor Neimöller. I have little hope that President Trump’s supporters or Republicans in Congress will have a sudden change of heart, or recognize that when due process protections are reduced for some, those protections are reduced for us all. They seem to believe that while the government might come for non-citizens, it will not come for them. Or in the case of our elected officials, they may know better, but are cowed by the President’s Twitter account. Either way, we can’t expect much help here.

So where does that leave us? Who will speak out?

The primary decision-makers in asylum cases—the people on the front line—are Immigration Judges and Asylum Officers. There are other players, of course: The federal courts, the Board of Immigration Appeals, and USCIS Officers, but in most cases, it will be the IJs and Asylum Officers who determine the applicant’s fate. Here, I do have hope. Despite seeming efforts (probably illegal) by the Justice Department to exclude politically undesirable candidates, most IJs and Asylum Officers are serious people who recognize their duty to the rule of law. They were not hired to rubber stamp the President’s agenda, and most will not do so.

And while I can’t say I am a fan of Pastor Neimöller’s famous quote, I do think he is correct in this sense: When we weaken the legal mechanisms and institutions that protect us from excessive government power, we all become more vulnerable. Perhaps non-citizens are the canaries in the coal mine. As the government seeks to reduce due process protections for them, we should all be concerned. Immigration Judges and Asylum Officers stand on the front line of this fight, and when they do their duty, they protect us all.

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Asylum Interview Tips for Attorneys from a Former Asylum Officer

by Jason Dzubow

Before founding Stilwell & Slatton, Victoria Slatton worked as an Asylum Officer at the Department of Homeland Security. As a former employee of USCIS, she has an in-depth understanding of the United States immigration system and is a passionate advocate for her clients in private practice. Her full bio can be found here.

Contact Victoria Slatton at victoria.slatton@ssimmigrationfirm.com. To schedule a consultation with an immigration attorney at Stilwell & Slatton, visit our website.

Victoria Slatton

It’s been a year since I left my former position as an asylum officer and switched to private practice. As a former officer, sometimes it’s hard for me to balance my inherent urge to zealously advocate for my client during an asylum interview with my knowledge of how my actions will be perceived by an asylum officer. To address these concerns, I’ve compiled a very basic list of information I think will be helpful for attorneys during an asylum interview.

  1. Go Over the I-589 With Your Client Before the Interview

Every officer has her own way of handling I-589 updates, but I personally preferred it when attorneys had changes to the I-589 already written out and ready for me to go over. You don’t have to redo the entire document. Instead, simply type up the changes in an organized Word document and respectfully ask whether the officer would like a written update to help subsidize their I-589 review. Some might say no, but others will be very grateful.

This was helpful to me for two reasons. First, it showed me that the applicant wanted to be upfront about the mistakes in his claim and had every intention of being forthcoming. Second, it saved me time, in that I did not have to ask repeatedly how to spell names of family members, addresses, or seek clarification from applicants over specific dates that might be confusing. Especially if your client has an interpreter, written updates could easily save an officer a precious 20 or 30 minutes in an interview. I was always grateful when attorneys took every step to respect my time.

  1. The Interview is About Your Client

It is very frustrating to sit back and watch your client struggle to answer a question he doesn’t understand, especially when you know he has a perfectly reasonable explanation and simply cannot communicate his response due to nerves or a language barrier. However, interjecting yourself into your client’s testimony to clear up a discrepancy is generally not going to do your client any favors.

Officers almost never factor in attorney interjections when making a decision, and sometimes it can prevent your client from saying what the officer needs to get on record. When I handed my supervisor my interview notes, I wanted it to be clear that the applicant was forthcoming in his responses and understood my questions, not the attorney. Unless a conversation is truly going off the rails and you feel it is necessary to recenter the discussion for the sake of your client, I would highly suggest saving these remarks for your closing argument.

  1. Have a Copy of Your Client’s Evidence in Front of You

One of the few times you should interject in an interview is if the officer asked for evidence that has already been submitted. Officers don’t always have time to review the file in depth before an interview, and might not truly understand the nature of everything that has been submitted. Therefore, if your client is asked a question about why a certain piece of evidence wasn’t brought forth, it is very helpful and appropriate to respectfully direct the officer to the exhibit in question.

  1. Make Your Closing Argument Short and Concise

Generally speaking, for an asylum officer, the closing statement will probably be the least important piece of information in the record. Officers understand the nature of zealous advocacy and know that you will already have an inherent bias to protect your client. Now that I’m in private practice, I try to keep my closing argument to under three minutes and maintain a level of respect for my officer, even if the interview has been particularly frustrating.

I usually use this time to address inconsistencies in my client’s testimony and to explain how I think the client either misunderstood the question or point to pieces of evidence that might help the officer paint a clear picture of what happened. For example, I recently had a client who stumbled over his timeline and incorrectly quoted a few dates. The officer questioned these discrepancies and I kindly explained at the end of the interview that my client used a different calendar in his home country and often became confused when recalling the specifics of his timeline.

Lastly, I will make a short statement about why my client meets the definition of a refugee. I try to keep this to a thirty second monologue. Closing statements are an art, not a science, and I tend to focus on different legal aspects depending on the case. It is important to remember that not every legal aspect of the case needs to be defended at this point in the interview.

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The Prevalence of Evidence

by Jason Dzubow

If the asylum seeker’s affidavit is the heart of her application, evidence might be considered the lungs: It provides the oxygen that allows the heart to function. Or maybe anatomical analogies are just weird. The point is, evidence in support of an asylum application is crucial to the application’s success. But what is evidence? And what happens if you can’t get it?

An asylum attorney prepares to file evidence in his case.

Let’s start with a bit about the law. The REAL ID Act of 2005 provides–

The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

See INA 208(b)(1)(B) (emphasis added). In other words, if you claim that something happened (you were unlawfully detained), you are required to provide evidence about it (a police document), and if you are unable to provide such evidence, you should be prepared to explain why you could not get the evidence (maybe the police in your country don’t issue receipts for illegally arresting people).

What this means is that you should try to get evidence supporting your case. Different lawyers may have different views on this, but I think you should get evidence for every claim you make in your affidavit and I-589. That includes evidence not directly related to the asylum claims, such as evidence of education, employment, awards and certificates, membership in organizations and religious institutions, travel to third countries, documents used to obtain your U.S. visa(s), birth certificates for you and your immediate family members, all passports for you and your immediate family members, marriage and divorce documents, national ID cards, military service records, arrest records, and general medical records. In other words, evidence about who you are and what you’ve been doing with your life.

Of course, you also need to get evidence related to your asylum claim. So if you were arrested, harmed or threatened, get evidence about what happened: Police and court documents, medical records and photos of injuries/scars, copies of any threats. If your case involves political activity in your country or elsewhere (including the U.S.), get party membership cards, receipts, letters from the party, and photos at political events. If it is a religious case, get evidence of your religion: Letters from church leaders and/or members, photos at religious events, certificates, membership documents, and government IDs, which sometimes list religion. If the case is based on nationality, ethnicity or race, get evidence that you belong to the group in question, such as identity documents.

For people claiming asylum based on membership in a particular social group (“PSG”), the evidence needed depends on the group. For LGBT cases, get evidence of sexual orientation, such as membership in gay rights groups and evidence of past relationships. If your PSG involves family members, get evidence of familial relationships–birth and marriage certificates, photos, and other family documents, including evidence that other members of your family were harmed or threatened. If you have a domestic violence case, get evidence of the relationship (marriage certificate, birth certificates of children, photos together, other documentation that you were in a relationship) and of the harm.

If there are newspaper or magazine articles, country reports or human rights reports–or even blog posts or Facebook posts–that support your asylum claim, include those. If you are using a newspaper or magazine, make sure to include the cover page of the newspaper, and the entire article. If you are using an on-line resource, make sure to include the website address.

You should also get letters from family members, friends, and colleagues who can attest to your problems (I’ve posted about how to write a good letter here). In many cases, it is impossible to get direct evidence of harm, and so letters from people attesting to your problems is all that you can get. While letters from family members and friends are not as valuable as more direct evidence, they are still valuable, and we always include such letters if we can get them.

Some people have scars or other evidence of physical harm (including FGM). In such cases, you should get a forensic medical report to help bolster your claim about how you received the scar (in other words, that the scar was caused by torture as opposed to a car accident or disease). Of course, the doctors who write such reports do not know for sure how you received a particular scar. But they can state that the scar is consistent with your explanation of how it was received. If you cannot afford a forensic exam (or find a doctor to do the exam pro bono), at least take photos of the scars and include them with your evidence. Normally, we have our clients take a close-up of the scar and also a photo from further away, so we can see the person’s face (so we know the scar is on that particular person’s body).

We also sometimes submit other types of expert reports. The most common are psychological reports (that indicate PTSD, for example). In my opinion, the most effective reports are the ones created in the course of treatment. The less effective reports are created after one or two meetings with the asylum seeker, and were clearly created for purposes of the asylum case. Sometimes, we also use expert reports related to country conditions, though these days, we can usually find what we need on the internet.

If any of your close family members applied for or received asylum, refugee or other humanitarian status (including SIV status) in the U.S. or abroad, try to get evidence of that status. In general, it is very helpful to show that other family members, who are often similarly situated, have been persecuted or have already received asylum. Indeed, we recently did a case in Texas where our client’s close family members all had SIV status (meaning that the U.S. government determined those family members faced a threat in the home country due to their cooperation with the U.S.). This evidence alone was enough to convince the Judge to grant asylum to our client.

You should also submit country condition information. Some lawyers submits lots of country condition information. I am not one of those lawyers. I think that redundant reports are counterproductive and distracting. It is standard procedure to submit the U.S. State Department Report on Human Rights Practices (or at least an excerpt of the relevant portions). Also, if applicable, we submit the State Department Report on International Religious Freedom. If those reports are not sufficient, we submits reports from other credible organizations, like Human Rights Watch or Amnesty International. There are also lots of issue-specific reports from groups like the Committee to Protect Journalists, Doctors Without Borders, and International Christian Concern, to name a few. If there are news articles from credible sources, we submit those too (if they are relevant and not redundant). Finally, if there are specific articles or reports from less-reliable sources that speak directly to the issues in the case, we submit those as well.

Of course, any documents not in English need to be properly translated.

Finally, it is important to review all the evidence to ensure that it is consistent with your statement and with the other evidence submitted (for example, if your statement says that you lived in a red house, your witness letters should not say that you lived in a blue house). Inconsistent evidence can lead to a determination that you are not credible, so be careful about this.

The evidence for each applicant is case specific. If you have an attorney, one of the attorney’s jobs is to evaluate your case and determine what evidence is helpful. If you do not have an attorney, you should still do your best to obtain as much evidence as possible. This will help increase your chances for a successful outcome.

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The Chimera of Immigration Court Quotas

by Jason Dzubow

Let’s say it’s your goal to deport as many people as you can get your hands on. You believe that most asylum seekers are fraudsters and you hope to make America great again by cutting programs like TPS and DACA in order to remove as many foreigners as possible. In other words, let’s say you are a member of the Trump Administration. In that case, will case completion quotas in Immigration Court help you achieve your goal?

Maybe if IJs were less lazy, they would complete more cases.

Superficially, it seems that they might. If Immigration Judges (“IJs”) are required to complete more cases, it makes sense that more people will be deported. Presumably with that goal in mind, the Executive Office for Immigration Review (“EOIR”)–the office that oversees the nation’s Immigration Courts–has recently created performance metrics to evaluate IJs based, in part, on the number of cases completed.

In order to achieve a “satisfactory” level of performance, IJs must now complete at least 700 cases per year, with less than a 15% remand rate (the “remand rate” is the percentage of decisions overturned by a higher court). IJs who complete between 560 and 700 cases “need improvement,” and IJs who complete less than 560 cases per year are deemed “unsatisfactory.”

For what it’s worth (a lot, in my opinion), the National Association of Immigration Judges (the IJs’ union) opposes the new plan because they fear quotas will infringe on the IJs’ independence. For its part, EOIR contends that using metrics to evaluate performance is “neither novel nor unique” and that it will “encourage efficient and effective case management while preserving immigration judge discretion and due process.”

I recently had the opportunity to speak to an IJ and a few court personnel about the new quotas, and they seemed nonplussed. In Baltimore, for example, I’m told that IJs with “regular” (as opposed to juvenile) dockets already complete well over 700 cases per year. The one IJ I spoke to said he completed 1,100 cases last year. Those number are well above average, according to the statistics I could find.

Five months into FY 2018, the nation’s IJs completed a total of 83,643 cases. Divide that by 330 judges, and you get an average completion rate for the U.S. of about 51 cases per month, or about 608 cases per year. Based on the statistics for Baltimore and my calculations (which are always suspect), the average IJ in that court will complete 855 cases this year. So why are Baltimore IJs so much more efficient than the national average?

As usual, I do not know. But looking at the case completion rates for other courts perhaps gives us a clue. In Miami-Krome, a detention center, the completion rate is about 739 cases per year per IJ. I would have expected a higher completion rate in a detention facility, as detained cases tend to move faster than non-detained (indeed, if you see a detained case file at EOIR, it will be labeled with a bold sign indicating “Rush–Detained at Government Expense”). Other detention facilities have even lower case completion rates: Eloy, AZ completes 658 cases per IJ per year, Harlingen, TX completes 516, and Elizabeth, NJ completes 457.

I suspect what’s going on with these variable rates has more to do with cases being venued to other courts than with IJ efficiency. In other words, many aliens in detention facilities are there because they were detained while trying to enter the U.S. Some percentage of these people are released, and then move to another part of the United States, where they pursue their cases. Thus, IJs near the border and at certain detention facilities (near airports or the border) tend to complete fewer cases because their cases are transferred to other courts. In my Baltimore example, there is no major detention facility nearby, and most people do not transfer their cases elsewhere. Hence, IJs in Baltimore tend to complete the cases that come before them.

The completion rate at other courts is more of a mystery. New York completes 540 cases per IJ per year, for example. LA completes only 477 cases per year (LA is near the border, so maybe some aliens are moving their cases to other jurisdictions).

In short, without better data, it is difficult to know what is going on. One thing does seem clear though: Grant rates vary significantly by court. Thus, for some IJs, the new quotas will be a non-issue. They already complete more than enough cases to earn the distinguished title of “satisfactory.” For other IJs, completing 700 cases, or even 560 cases, might be impossible. If so, the new quotas may force those judges to circumvent due process in order to fulfill EOIR’s mandate.

The new quotas raises other questions as well. The biggest one for me involves the anticipated influx of TPS and DACA recipients whose status has been terminated. It’s widely believed (including by yours truly) that many of these people will file for asylum rather than depart the United States. In an effort (probably futile) to dissuade such people from seeking asylum, USCIS has already re-ordered how cases will be processed, so that newly-filed cases will be interviewed first. If those cases are denied, they will be sent to court, where–according to one official I spoke to–they are supposed to be heard on an expedited basis. But how can that happen unless the court dockets are re-ordered? This “aimless docket reshuffling” (a termed coined by the inimitable Judge Schmidt) will pretty clearly interfere with the IJs’ ability to meet EOIR’s quotas.

So in the end, it seems that the new quotas will have no affect on some IJs, and dramatic affects on others. Whether overall completion rates will be improved, I have my doubts, especially if dockets are reshuffled to accommodate an influx of TPS and DACA recipients. I also have doubts about whether IJs who are forced to drastically increase their completion rates will be able to continue making decisions in accordance with due process of law. Sadly, the Trump Administration seems far more concerned about quantity than quality, and I fear that asylum applicants, immigrants, and our nation’s IJs will all suffer because of it.

 

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Tips from a Former Asylum Officer

by Jason Dzubow

Heidi Boas has dedicated her legal career to assisting asylum-seekers, refugees, and other immigrants through her work with the U.S. Government, United Nations, and non-profit organizations. Heidi served as a Senior Asylum Officer at the Arlington Asylum Office (2014-2017) and currently practices immigration law at Wilkes Legal, LLC in Takoma Park, MD. Heidi’s full biography can be found here.

Heidi Boas

Contact Heidi Boas at heidi@wilkeslegal.com. To schedule a consultation with an immigration attorney at Wilkes Legal, LLC, visit our website or call (301) 576-0491.

Given the large backlog and heavy caseload at the asylum office, asylum officers are under significant pressure to complete cases as efficiently as possible. An asylum officer is allocated an average of four hours to complete each asylum case, which involves some steps that you and your attorney don’t see—including about an hour spent drafting the written decision, and about forty minutes working on security checks and other administrative tasks. When you add those steps to the two hours that an asylum officer spends conducting the average asylum interview, the officer may have only about twenty minutes to review your file before calling you in for the interview. When preparing your asylum case, therefore, it is helpful to keep the asylum officer’s time constraints in mind and avoid submitting extraneous information.

Below are some tips from my perspective as a former asylum officer on how to prepare an effective and efficient asylum claim:

The Personal Statement

The personal statement is arguably the most important document in your asylum application, but it does not need to be very long. If the asylum officer only has twenty minutes to review your file, she probably will not have time to read your attorney’s lengthy legal brief, but she should always take time to read your personal statement. Given the time pressure that the officer is under, it is best to keep your personal statement concise and to the point. I recommend limiting it to a length of five pages or less. State up front why you are applying for asylum—What harm did you suffer in the past or do you fear in the future? Why were you harmed in the past, and/or why do you fear harm in the future? Avoid including extraneous information such as details about your family background, education, and employment history. Basic information about your background is included in the Form I-589 Application for Asylum, and additional detail is often irrelevant to your asylum claim. The main purpose of the personal statement is to focus on any harm that you suffered in the past and any harm you fear in the future. Leave general references to country conditions out of the personal statement and focus on telling your story. Finally, make sure that you fully understand the contents of your personal statement before signing it, and that the statement has been translated back to you word-for-word in your language.

Supporting Documents

Keeping in mind the asylum officer’s time constraints, you should avoid submitting extraneous or duplicative documents in support of your asylum claim. For example, it is usually not helpful to submit copies of your diplomas or school records, as these documents are usually irrelevant to your asylum claim. It is also unnecessary to submit hundreds of pages of country conditions documents. Asylum officers are already familiar with human rights conditions in many countries and keep their own country conditions excerpts on hand to use when writing decisions. If an asylum officer is not already familiar with the situation in your country, the officer will conduct research and find relevant information to include in his or her written decision. Asylum officers generally consult the Department of State’s Country Reports on Human Rights Practices, as these reports are considered an objective and reliable source of information. Since asylum officers have their own resources for finding country conditions information, you should be mindful of the number of pages you submit and highlight any excerpts of a report that you want the officer to focus on.

Form I-589

Take the time to carefully prepare the Form I-589 Application for Asylum, including details about where you have lived, your education, and your employment history. This can help save time when the asylum officer reviews the form with you during your interview. If you have several changes or corrections to make to Form I-589 at the interview, it is helpful to provide the officer with a list of your changes. The asylum officer is still required to note any corrections or changes by hand on the original Form I-589, but your list can help save the officer some time.

Under “other names used,” list as aliases any alternate spellings (including misspellings) or alternate versions of your name that you have used. By listing these other names on Form I-589, you can help avoid delays during the security check process. After receiving the asylum application, the asylum office will automatically run security checks on any names listed on Form I-589. If the asylum officer learns during or after the interview that you have used another version or spelling of your name that was not initially listed on Form I-589, the officer must then initiate the security check process for that name, which could cause a delay in receiving your decision.

The Legal Argument

Asylum officers are required to undergo an extensive six-week training program in asylum law, and pass exams before adjudicating asylum cases. In addition, they continue receiving weekly training throughout their tenure at the asylum office. If confronted with a challenging or unfamiliar legal issue, asylum officers are encouraged to refer to the Asylum Officer Training Manual or consult a supervisor.

In light of the training that asylum officers receive and the significant time constraints they face, it is not necessary to submit a lengthy legal brief in support of your asylum case. The asylum officer probably won’t have time to read the brief word-for-word and may not have time to read it at all. If you or your attorney are making a novel legal argument or referencing new case law and want to submit your argument in writing, try to keep your analysis as concise as possible. A succinct cover letter can suffice, for example, instead of a lengthy brief.

Preparing for the Interview

When preparing for the asylum interview, don’t avoid addressing the tough issues. A critical part of an asylum officer’s job is to assess your credibility, so you should discuss with your attorney any potential credibility issues that could arise and be prepared for questions about those issues at your interview. An asylum officer is required to confront you about any inconsistencies in your testimony or application, give you an opportunity to explain the inconsistency, and then assess the reasonableness of your response. Be prepared to respond calmly and provide an explanation for any inconsistencies, rather than reacting defensively to the officer’s question.

After the Interview

After the interview, if you strongly disagree with the asylum officer’s decision, consider filing a Motion to Reopen or Reconsider. No form or filing fee is required. The motion should be filed within 30 days, or later if you can show the delay was reasonable and beyond your control. It is best to submit the motion by letter to the asylum office as soon as possible after receiving your decision. If the asylum office receives your motion soon enough, it can decide to call you back in for a re-interview before serving a Notice to Appear (“NTA”) on the court. Alternatively, if the NTA has already been served on the court, the asylum office can ask Immigration and Customers Enforcement to terminate the NTA and recall the case to the asylum office for another interview.

If you have been waiting months or years since your interview to receive a decision from the asylum office, you might consider filing a writ of mandamus. A mandamus can help incentivize the asylum office to call you in for another interview and finally issue a decision. Even if the asylum office’s decision is not a positive one, you can move forward with presenting your case before the immigration judge and then pursuing any necessary appeals.

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Attorney General Seeks to Limit Asylum… Or Something

by Jason Dzubow

The Attorney General, Jefferson Beauregard Sessions, has been busy “certifying” cases to himself in order to (apparently) reduce protections for certain asylum seekers. I want to talk about two cases in particular, but first, let’s talk about the process that Mr. Sessions is following.

“Oh Magoo, you’ve done it again!”

The decisions in question involve cases that were before the Board of Immigration Appeals (“BIA” or “Board”), the administrative appellate body that interprets the nation’s immigration laws. The BIA has been called (sometimes derisively) the “Supreme Court of immigration law.” The BIA is not actually a court in the normal sense of the word (and, by the way, neither are the Immigration Courts). Instead, it is an office within the U.S. Department of Justice. The leader of the Department of Justice is the Attorney General (“AG”). So in essence, the BIA derives its power from the AG, who is the ultimate “decider” when it comes to BIA cases.

What has been happening recently is that Mr. Sessions has been “certifying” cases from the BIA to himself. Basically, this means that he is taking the cases from the BIA and changing the Board’s decisions. In a sense, this is nothing new–previous AGs have done the same thing on occasion. But the concern here is two-fold: Substantively, the AG seems to be moving towards limiting the scope of asylum protections in some types of cases, and procedurally, the AG’s actions do not comport with due process of law, at least as that concept is understood in non-totalitarian countries.

The first case I want to discuss is Matter of E-F-H-L-, 27 I&N Dec. 226 (AG 2018). In that case, the AG vacated a 2014 BIA decision (also called Matter of E-F-H-L-) and returned the matter to the Immigration Judge (the letters in the case name refer to the alien’s initials). The 2014 case stands for the proposition that an asylum applicant is entitled to a hearing on the merits of her application, including an opportunity to provide oral testimony and other evidence, “without first having to establish prima facie eligibility for the requested relief.” In other words, the case is widely viewed as re-affirming the right to a hearing, even if the asylum claim, as articulated by the applicant, is legally insufficient.

In civil litigation, there is something called “failure to state a claim.” Judges routinely dismiss lawsuits if they determine that a litigant’s claim–even if taken as true–does not entitled the litigant to relief. In our adversarial system, this makes sense. Why waste a court’s time (or the jury’s time) adjudicating the facts of a case if those facts do not entitle the claimant to any relief? And why not do the same thing for asylum applicants?

The main objection is that many asylum applicants are unrepresented, and do not know how to articulate their claims effectively. Only in the course of testimony might an applicant’s claim become apparent (and that is especially true in a case like E-F-H-L-, where there is a complicated “particular social group” analysis). Most Immigration Court hearings are fairly truncated affairs to begin with, and so further curtailing an applicant’s ability to present his case makes it even more likely that overworked judges will take the easy route and dismiss an asylum claim before the applicant is able to fully develop his case. The result, of course, will be that legitimate asylum seekers are denied protection.

So it is concerning that Mr. Sessions has vacated E-F-H-L-. But what comes next is not yet clear. The case has been returned to the Immigration Court for further decision-making, and as I read the case, it seems unlikely that the Judge or the BIA would need to rule on E-F-H-L-‘s right to a full hearing. According to the AG’s decision, E-F-H-L- married a U.S. citizen and withdrew his asylum claim. If that is true, there is little reason to think we will hear anything more about this particular case.

The problem, though, is that the AG presumably vacated E-F-H-L- for a reason. I expect the reason is that he wants to create a new standard (in a different alien’s case) for adjudicating asylum claims. What this standard will be, we do not yet know, but given Mr. Sessions’s jaundiced view of asylum seekers, I’m not feeling optimistic. Whatever he does, Mr. Sessions is limited by the statute and by the courts, and so hopefully, it will not be as bad as we fear.

The second case I want to discuss is Matter of A-B-, 27 I&N Dec. 227 (BIA 2018). Mr. Sessions has certified that BIA case to himself and requested new briefs (legal arguments) from the parties and from amici (interested organizations). The question Mr. Sessions wants briefed is this:

Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

We don’t know, but presumably the goal here is to block asylum seekers who fear harm from “private criminal activity.” This might, for example, block people fleeing harm from gangs in Central America, or victims of domestic violence. It potentially affects other types of asylum claims as well.

The main problem is that Mr. Sessions has asked for briefing on a question that is vague. He has not given us the facts of the case, thus making it difficult to write an effective brief, since cases are fact specific. He even tried to hide the name of the attorney representing A-B-; perhaps in an effort to block advocates from learning more about the case.

This is not how due process works, and I imagine that whatever decision the AG issues in A-B- will be vulnerable to review by the federal appellate courts, which tend to look askance at such blatant (and amateurish) violations of due process.

That the Attorney General of the United States would engage in such obvious procedural misfeasance is very concerning. Since we don’t know what the AG is really asking for, his request for amici briefs is completely disingenuous. Indeed, even if you favor limiting the scope of asylum, you should be concerned when our country’s top law enforcement officer demonstrates such contempt for the rule of law.

Where the AG is heading with all this, we shall see. The widespread belief among advocates is that in anticipation of DACA and TPS ending, Mr. Sessions is planning to roll back protections for certain asylum seekers, specifically people facing harm from gangs and also victims of domestic violence. But he could also be targeting LGBT asylum seekers who fear community (as opposed to government) persecution, victims of female genital mutilation, and victims of terrorist groups, among others.

Finally, it’s difficult not to see the irony here. For years, advocates for asylum seekers have been litigating to expand protections for a wider range of persecuted individuals, particular women, who often face harm not contemplated by the people (mostly white men) who came up with the definition of “refugee” after World War II. However, by pursuing litigation—rather than legislation—we have left ourselves vulnerable to a restrictionist Administration that now seeks to contract that definition.

Don’t get me wrong—I certainly don’t blame advocates for our current woes; we tried and failed legislatively at least once. But I do hope that if the pendulum swings back, and the public mood becomes more favorable, we will try again to create a refugee law that is more in-tune with the types of harm individuals face today. Until then, we are stuck litigating our clients’ cases in an uncertain environment, against an Attorney General who has little interest in playing by the rules.

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Your Affirmative Asylum Case Was Denied. Now What? (Part 2: Immigration Court and Beyond)

by Jason Dzubow

This is part 2 of a posting about what happens if the Asylum Office denies your affirmative application. Read part 1 here.

The view from the Judge’s seat in Immigration Court.

If the Asylum Office denies your asylum case and you are no longer “in status,” you will be referred to an Immigration Court. When you get the denial (which they politely call a Referral), it will contain a short letter with a (usually) boilerplate explanation about why the case was not granted. Along with the letter, you will receive a Notice to Appear (“NTA”), which explains why the U.S. government believes it can deport you. If you have dependent family members, each of them should also receive an NTA (assuming they are all out of status).

The NTA contains allegations and charges. The allegations usually begin, “(1) You are not a citizen or national of the United States; (2) You are a citizen and national of [your country]; (3) You entered the United States on [date and place],” and then they state why you are removable. Often, the alien is removable because she remained in the United States longer than permitted. Other times, the alien entered the U.S. unlawfully (without inspection) or fraudulently (using a fake passport, for example). Some people are removable due to criminal convictions or other immigration violations. Read the NTA and make sure all of the allegations are correct.

The NTA also contains one or more charges. The charges indicate the section of the law (the Immigration and Nationality Act or INA) that the government can use to deport you. One common charge is under INA § 237(a)(1)(B), where the person is removable for having “remained in the United States for a time longer then permitted.” Other charges could relate to an unlawful or fraudulent entry, or to a criminal conviction.

Finally, the NTA will tell you where to go to Immigration Court. Usually, these days, the NTA does not tell you when to go to court. Instead, it says, “TBD,” which means “To Be Determined.” If your court date is TBD, you will receive a notice in the mail with the date of your first hearing. It is important to keep your address updated with the Immigration Court. Use form EOIR-33, and don’t forget to send an extra copy to the DHS Office of the Chief Counsel (the prosecutor).

Also, you can call the Court phone system to check the status of your case and learn whether you have an upcoming hearing. The phone number is 800-898-7180. It is a computer; not a person. Once it answers, follow the instructions and enter your Alien number. After the computer spells your name and you confirm, you can push 1 for your next court date. I recommend you call once a week, just in case you don’t receive the written notice (if you miss your court date, the judge will likely order you deported).

The wait time for the first court date depends on the court and the judge—it could take a few weeks or a few months (or sometimes longer).

Once you are scheduled for court, you will be assigned a judge. The 800-number will tell you the name of your judge. You can learn more about your judge at TRAC Immigration (information is not available for newer judges).

The first hearing is called a Master Calendar Hearing (“MCH”). Many people attend that hearing, and you have to wait your turn. When it is your turn, if you have a lawyer, the Immigration Judge (“IJ”) will take “pleadings.” This is when you (through your attorney) admit or deny the allegations and charges in the NTA. After that, the IJ will usually schedule you for an Individual Hearing (also called a Merits Hearing).

If you do not have an attorney with you at the MCH, the IJ will usually give you a continuance to find an attorney. If that happens, you will be scheduled for another MCH. In generally, the IJs really want you to find a lawyer, as it makes their job easier and it significantly increases the likelihood that your case will be approved.

For most referred asylum applicants, the NTA is correct and the person will admit the allegations, concede the charges of removability, and request asylum, Withholding of Removal, and relief under the United Nations Convention Against Torture. However, in some cases, the NTA is not correct. Also, some applicants can seek other relief, such as Cancellation of Removal or adjustment of status based on a familial relationship (or something else). One job of the attorney is to explore what types of relief you might be eligible for.

Also, at the MCH, the IJ will ask you to designate a country of removal. In other words, the IJ wants to know where to send you if you lose your case. For most asylum applicants, we decline to designate a country of removal. The DHS attorney (the prosecutor) will usually designate the country of citizenship.

If you admit the allegations, concede the charge(s), and indicate what relief you are seeking, the IJ will usually schedule you for an Individual Hearing, which is your trial. If you decline to accept the first Individual Hearing date the IJ offers you, or if you take a continuance to find a lawyer, it could prevent you from obtaining a work permit (if you don’t already have one—if you already have a work permit, you do not need to worry about this). If you think this could be a problem in your case, ask your lawyer. If you do not have a lawyer, ask the IJ.

The wait time between the MCH and the Individual Hearing varies by court and by judge. It might be a few days or weeks (for a detained alien), or it could be several years. Supposedly, for asylum cases referred to Court under the new last-in, first-out system, IJs will be scheduling quick Individual Hearing dates. We’ll have to wait and see how that works out.

The Individual Hearing is your trial. It is where you present evidence, and where you and your witnesses testify. At the end of the Individual Hearing, the IJ will usually make a decision—give you asylum, give you some other type of relief, or order you deported. Sometimes, a case requires more than one Individual Hearing. Other times, the IJ will send the decision by mail.

If lose your Individual Hearing, you can appeal to the Board of Immigration Appeals (“BIA”). If you win your asylum case, DHS can appeal (thankfully, that is not so common). You do not appear in-person for the appeal. Instead, you (or hopefully, your lawyer) will submit a brief, and the BIA will read it and make a decision in your case. Either the BIA will dismiss the appeal, meaning the IJ’s decision was correct and will remain in force, or it can alter or reverse the IJ’s decision. In the latter instance, the case will normally be returned to the IJ to correct the error, and issue a new decision.

An appeal with the BIA typically takes about six months or a year, but it depends on the case.

If you lose at the BIA, you can file a Petition for Review with the appropriate federal appellate court, and if you lose there, you can try to go to the U.S. Supreme Court. Very, very few cases make it that far. Also, if you lose at the BIA, whether or not you go to federal court, you are no longer eligible for a work permit based on a pending asylum case, and you can be deported (typically, ICE will not deport someone with a pending federal case, but they have the legal authority to do so unless the federal court issues an order “staying” removal). For the vast majority of aliens, if you lose at the federal appellate level, that is the end of the line.

In my experience, it is a bit easier to win an asylum case in Immigration Court as compared to the Asylum Office. But it is much more difficult to win at the BIA, and even more difficult to win at the federal appellate level.

So this is the basic process that most cases follow if they are denied at the Asylum Office. There are some exceptions and different paths (most notably Motions to Reopen and/or Reconsider), but the majority of applicants will follow this process. If your case is rejected by the Asylum Office, it becomes even more important to have a lawyer assist you. If you can’t afford a lawyer, check this posting for some helpful resources. And remember, losing at the Asylum Office is frustrating and upsetting, but it is by no means the end of the road. Keep fighting, and hopefully, you will have a good result in the end.

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The Last-In, First-Out Policy Ain’t Exactly Last-In, First-Out

by Jason Dzubow

It’s been a month since the Asylum Division surprised us by changing from a first-in, first-out (FI-FO) system to a last-in, first-out (LI-FO) system. Under the new system, cases were supposed to be interviewed in the following order of priority: (1) Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS; (2) Applications that have been pending 21 days or less; and (3) All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings. So in other words, the Asylum Offices would interview newly filed cases first; then, if they had extra time, they would interview recently filed cases, working their way backwards through the backlog.

How’s the new LI-FO system working out for you?

We’re now a month in, and the new system is not working exactly as advertised. In our office, for example, we had one client whose case was filed in mid-January 2018. The case was scheduled for an interview earlier this week (we postponed it, as we needed more time to gather evidence). This is about what we expected under the LI-FO system. Another client, whose case was filed in August 2014 was scheduled for an interview in mid-March. The Asylum Office mailed out the interview notice in mid-February, at a time when LI-FO should have been in place. This is not what we were expecting. So what the heck is happening?

It turns out that different Asylum Offices are implementing the LI-FO system in different ways. In a conference call with AILA (the American Immigration Lawyers Association), the Asylum Division informed us that if they do not have enough new cases to fill their schedule, Asylum Offices will interview cases from the backlog. The different offices apparently have the authority to decide which backlogged cases they will choose to interview–old cases, new cases or (I guess) whatever cases they feel like interviewing.

In my local office–Arlington, Virginia–it seems they are interviewing old backlog cases–from 2014. This is contrary to the interview priorities published on January 31, 2018, where the Asylum Division indicated they would work their way backwards through the backlog. It sounds like other Asylum Offices will interview newer backlogged cases–from January 2018 or December 2017, in conformity with the published priorities.

On one level, my preference is that the Asylum Offices interview older cases first, as that seems more fair. But frankly, at this point, my main concern is that they just make a decision and stick with it. It’s bad enough that the Asylum Division announced a surprise change and basically upended the expectations of asylum seekers (and their lawyers). But now, it seems they can’t even follow their own policy.

For advocates, including yours truly, this makes it very difficult to know how to prioritize cases and advise clients. Worse, so much uncertainty makes it even more difficult for asylum seekers to endure the long waits.

Of course, all things pass, and my guess is that we are currently in a period of transition. After the recent change to LI-FO, many attorneys and applicants stopped filing cases. Prior to the change, we were filing bare-bones asylum applications with the intention of finishing the cases later, as the interview date approached. But now, given the (supposed) short time between filing the case and receiving the interview, we have to file completed cases. It takes more time to prepare complete cases, and so we are adjusting how we do things. As a result, fewer cases are being filed and the Asylum Offices have a brief pause to work on backlogged cases.

However, once everyone re-calibrates, I expect the volume of new asylum applications will return to normal, and the Asylum Offices will probably be interviewing new cases, and maybe–if we’re lucky–some cases from the backlog.

Once things settle down, it would be nice to know how the different Asylum Offices plan to interview backlog cases going forward. That way, asylum seekers will have some idea what to expect, and attorneys can advise their clients and manage their caseload. In this sense, the now-defunct Asylum Office Scheduling Bulletin was quite helpful. At least we had some idea about what was going on.

My hope is that the Asylum Offices will choose to provide us with some information about how they are operating. This shouldn’t be all that difficult since each office has its own website. Indeed, whether they are moving through their backlog from oldest to newest or from newest to oldest, I don’t see why they can’t simply tell us where they are.

And while I’m wishing, maybe they can also give other useful information on their website, like the deadlines for filing evidence and the procedures for rescheduling, expediting, and short-listing. Repeat customers like me already know the rules, but pro se applicants don’t, and there is currently no easy way for them to find out. Why not simply post this information on the Asylum Office website for everyone to see?

I know that all this is probably asking for too much. I also know that the Asylum Offices are in a tough spot these days. The Trump Administration is clearly hostile to their mission of protecting bona fide refugees, and anything they do to make the process more user-friendly might come back to bite them. Also, they are potentially on the cusp of a massive surge in new cases, if nothing is done for DACA or TPS recipients. Nevertheless, it would be nice if they could follow the policy that they announced less than a month ago. Or, if they don’t plan to follow the policy, at least keep everyone informed about what they are doing.

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