By now, you’ve probably heard that the Trump Administration is not a fan of immigrants. They have been making changes to detain and deport more non-citizens, more quickly, and with fewer due process protections. To that end, the Administration is pressuring Asylum Officers and Immigration Judges to adjudicate more cases. These civil servants are already stretched thin, and so the additional work is likely to reduce decision quality, as well as damage morale. It will also make litigating cases more difficult for asylum seekers and other non-citizens, as they will have less time to present their cases, and–most probably–less time to prepare.
Last week, 13 of 28 members of the Board of Immigration Appeals (BIA) were purged. Those targeted include appellate judges appointed by the Biden Administration, some of whom were still on probation (BIA judges have a two-year probationary period) and others who had completed their probation. The firings, which go into effect next month, seem not to have complied with proper legal procedures, and are likely to be challenged in court by at least some of the terminated judges.
Having talked with people on the inside, this mass firing sounds like it is only the beginning. I’m told that the Trump Administration plans to radically re-make the Immigration Court system in order to dramatically reduce due process protections for non-citizens.
There was a time during the good old days of the Obama Administration when the Asylum Office would release quarterly statistics and even hold in-person stakeholder meetings where advocates could talk to the Asylum Office leadership. The Trump Administration worked hard to end transparency in government, and the pandemic didn’t help. As a result, the meetings and quarterly data disappeared. I had hoped that the Biden Administration would revive these practices, but that was not to be.
So now-a-days, we have to get our data where we can. This isn’t easy, but recently–as a result of my involvement in some Congressional lobbying efforts–I came across information about the Asylum Office that I thought I would share here. (more…)
In criminal law, if an accused person spends time behind bars before his conviction, that time can be credited towards his total sentence. Is there an equivalent concept in asylum law, where applicants routinely wait years for a decision in their case? (more…)
For years, the asylum backlogs in Immigration Court and the Asylum Office have been growing rapidly. But lately, they’ve been growing RAPIDLY–with a capital “R”. And a capital “APIDLY”. Probably I should add a few exclamation marks (!!!) after that and at least one “very” before it. What I’m trying to say is, of late, the backlogs have been growing at an insane rate.
Here, we’ll talk about what is happening and why, and try to guess what it all means for asylum seekers. (more…)
It is the job of a lawyer to learn about your situation and then advise you of your options. You want to know, “If I do X, what will happen?” In many areas of the law, attorneys can provide this type of advice. If you rob a bank and get caught, you will go to jail. If you sign a contract and then breach your agreement, you will be liable for damages. If you fail to pay taxes, you will face criminal and civil penalties.
But in immigration law–and particularly in asylum law–it is often impossible to provide precise advice. The unfortunate fact is that asylum seekers must live with significant uncertainty. (more…)
USCIS recently released some new information to Congress about the affirmative asylum backlog, and–surprise, surprise–the news is not good. The backlog continues to grow at a record-setting pace, meaning that under the agency’s last-in, first-out (LIFO) policy where new cases receive priority over old cases, those waiting for an interview are falling further and further behind. Worse, USCIS has indicated that they do not have the resources to reduce the backlog, and they don’t expect to receive those resources any time soon. (more…)
Here’s a common situation: A person files for asylum at the Asylum Office and her case is pending for years. During that time, she marries someone who does not have immigration status in the U.S., and she wants to add her spouse to her pending asylum application. And here’s another (less common) scenario: A person has a pending asylum application and the person’s child arrives in the United States and wants to join their parent’s case. Today, we’ll discuss how to add a dependent to an existing asylum case. (more…)
Immigration Courts across the U.S. have been randomly rescheduling and advancing cases without regard to attorney availability or whether we have the capacity to complete our cases. The very predictable result of this fiasco is that lawyers are stressed and overworked, our ability to adequately prepare cases has been reduced, and–worst of all–asylum seekers are being deprived of their right to a fair hearing. Besides these obvious consequences, the policy of reshuffling court cases is having other insidious effects that are less visible, but no less damaging. Here, I want to talk about some of the ongoing collateral damage caused by EOIR’s decision to toss aside due process of law in favor of reducing the Immigration Court backlog. (more…)
In a meeting held earlier this month, we received some updates from the Asylum Division. Although Acting Director Sue Raufer could point to some positive developments in asylum world, the news is generally pretty bleak. In a development that will shock no one, the worst news relates to the backlog, which is growing at an unprecedented rate.
It’s the rare occasion when I can report some good news, but it seems that USCIS is taking action to help people in the affirmative asylum backlog. According to the most recent data (from December 2021), there are about 438,500 cases pending at the Asylum Office. The large majority of these applicants have not yet received interviews. Now, USCIS has hired an additional 80 Asylum Officers who will be dedicated to interviewing applicants who filed for asylum on or before January 1, 2016, meaning that they will be interviewing asylum seekers who have been waiting the longest.
Here, we’ll discuss what this means for those applicants, and also for people who filed after January 1, 2016. I’ll also make some suggestions about how to schedule these interviews in a way that is fair to applicants and to their lawyers (i.e., I will beg USCIS to have mercy on us). (more…)
When you were in middle school, did you ever have a crush on a classmate? Did you analyze every stray glance and dissect every off-hand comment for signs that your crush liked you too? I feel like that’s what we’ve come to as observers of the asylum system. The mere mention of the words “asylum” and “backlog” by a government bureaucrat in the same sentence has become cause for celebration. My crush knows I exist! Woo Hoo!
Such a momentous event came to pass last week, when the Acting Director of the Office of Management and Budget (“OMB”) included the following paragraph in a letter to the Chairman of the Senate Appropriations Committee, summarizing President Biden’s “Discretionary Funding Request” for FY2022–
Supports a Humane and Efficient Immigration System. The discretionary request supports the promise of a fair and equitable immigration system that welcomes immigrants and reflects the Nation’s values. The discretionary request provides $345 million for the United States Citizenship and Immigration Services to address naturalization and asylum backlogs, support up to 125,000 refugee admissions in 2022, and allow for systems and operations modernization. The discretionary request supports expanded access to the Alternatives to Detention program and provides enhanced case management services, particularly for families seeking asylum. (more…)
Way back in the summer of 2015, immigration lawyers started to notice that EOIR was scheduling hundreds, maybe thousands, of Immigration Court cases for a single date: November 29, 2019. Supposedly, this was a holding date, and all those cases would be rescheduled. Now, November 29, 2019 is upon us. As such, I thought it might be nice to re-visit my blog post from back in 2015, when all this seemed a long way off (plus, it being Thanksgiving, I wasn’t much in the mood to write something new). Have things changed since 2015? You bet. But mostly for the worse, as there are now over one million cases in the Immigration Court backlog (in contrast to 2015, when there were about 456,000 cases in the backlog). Anyway, without further ado, here is my blog post from July 1, 2015–
Postcard from the Apocalypse: November 29, 2019
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If you’re reading this, maybe there’s still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end.
I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could have—could still—turn out differently.
What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.
“What was it, then?!” you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity–a black hole, if you will–that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that’s left is me and a few others. We don’t have much time.
It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didn’t they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration Court—No two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?
Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didn’t think it was a big deal. They were violating the alien’s due process rights, but only a little. And it was for a good cause—efficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen.
And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single day—November 29, 2019. They claimed this was some sort of “holding” date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind!
Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came.
EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didn’t. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose we’ll never know, and anyway, it doesn’t much matter.
The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn’t only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B’s, TN’s, and L’s, Q’s and R’s, H1-B’s and E’s, all varieties of A’s and J’s, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.
And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path–a black hole. But like I say, if you’re reading this, there’s still hope. There is a simple solution to the Immigration Court backlog. It’s so obvious, that it’s a wonder no one noticed it before. All you have to do is…
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Last month, the Asylum Division released the most recent data about the affirmative asylum backlog. The short story is that the nationwide backlog continues to grow, albeit quite slowly. Also, the growth is not evenly distributed among the various Asylum Offices–some are seeing their backlogs get larger; others are seeing their backlogs shrink. Here, we’ll take a closer look at what is happening in terms of the backlog, and also review some of the (surprising) answers that the Asylum Division gave to questions posed at the quarterly stakeholders meeting.
First, some numbers. In February 2019, the nationwide backlog was 326,767 cases; in March, it was 327,984, meaning that the backlog grew at a rate of less than 0.4%, which is pretty insignificant. However, when we break down the growth rate by Asylum Office, we see a different picture. Some offices had growing backlogs: Arlington (+1.5%), Boston (+0.2%), Houston (+1.8%), Miami (+0.8%), New York (+0.2%), New Orleans (+4.1%), and San Francisco (+0.5%). Other offices had shrinking backlogs: Chicago (-0.2%), Los Angeles (-1.3%), and Newark (-1.9%).
What these numbers mean for asylum seekers is not entirely clear. For people in the backlog, only three offices seem to be making any headway at all, and so if your case is stuck in Chicago, LA or Newark, there is at least some hope that you will eventually receive an interview. Backlogged applicants in the other offices are unlikely to receive an interview any time soon, unless they can expedite their case.
For new applicants, my suspicion is that offices with shrinking backlogs are more likely to interview newly-filed cases. For example, most of our cases are filed in three offices: Arlington, Chicago, and Newark. Arlington has a growing backlog, and our experience there is that a minority of our newly filed (LIFO) cases receive interviews. In Chicago and Newark, which both have shrinking backlogs, our newly-filed cases all seem to receive interviews.
So if you plan to file for asylum, and want to maximize the chance for a fast interview, are you better off filing in Chicago, LA or Newark? Maybe. But one issue is that USCIS moves resources from office to office, and so a fast office today might be a slow office tomorrow. An example of this is Los Angeles. For years, LA was the office with the largest asylum backlog. Then, at some point, headquarters sent some help (or made some sort of change), and now LA is one of the “fast” offices. At the Asylum Division Quarterly Stakeholder meeting last month, we asked about the inequitable delays, and the leadership told us that in summer, they re-evaluate how resources are distributed. So maybe there will be changes in the coming months, and this could affect how the local offices process their cases.
What about grant rates at the different offices? There are different ways to calculate grant rates, and so to some degree, whether a particular asylum office is “easy” depends on how you crunch the numbers. I prefer to factor out “no shows” for obvious reasons. I also factor out one-year bar cases, which is arguably a bad idea, and cases referred without an interview. In other words, I want to know the grant rate for cases filed on time, where the person shows up for his interview. Using that method, the overall grant rate for the U.S. for March 2019 (the most recent month available) is 47.7% (had I not factored out the cases I don’t like, the grant rate would be much lower: 27.5%). Looking at grant rates for each office, we have: Arlington (44.0%), Boston (37.8%), Chicago (55.6%), Houston (44.7%), Los Angeles (68.3%), Miami (25.5%), Newark (43.1%), New York (23.7%), New Orleans (68.3%), and San Francisco (69.3%).
While I think there is some value to these numbers, it is important to remember that different offices serve different populations, and some populations are more likely to be denied than others. For example, though many Central American asylum seekers face severe danger, they often have a hard time winning asylum because the harm they typically face does not easily fit within a protected category under the asylum statute. For this reason, an office with many Central American cases might have a lower grant rate than an office that serves a different population. Put another way, a strong case is likely to win regardless of the office where you file. Even so, when you have such a wide range of approval rates, it’s hard to argue that a person is not better off filing in LA, San Francisco or New Orleans, as opposed to Miami or New York.
So that’s more-or-less where we are in terms of the backlog and asylum grant rates, but there is other news from the Asylum Division as well, including about the LIFO system itself. Here, the Asylum Division is claiming a win: “Since the adoption of the LIFO scheduling policy, the Asylum Division has seen an approximately 30% decrease in receipts [i.e., newly-filed asylum cases].” The theory being that frivolous asylum seekers, who just want a work permit, are deterred from filing by the LIFO system. I don’t doubt that the number of asylum seekers has dropped since January 2018, when LIFO went into effect, but I am not convinced that LIFO gets credit (or blame) for this. There could be many reasons for the down turn, including normal fluctuations in applications, the hostile environment for asylum seekers, greater difficulty in obtaining a U.S. visa, etc. However, given that the Asylum Division views LIFO as contributing to a reduction in applications, I would not expect a change in that policy any time soon.
Also at the Stakeholders meeting, the Asylum Division informed us that, between October 2018 and March 2019, “approximately 70 percent of asylum office final decisions were made within two weeks of the completed interview.” I’m a bit more skeptical about this claim. At least I do not see it for my clients, who usually wait months (at least) for a decision. Admittedly, most of my clients are not typical asylum seekers, who come from Latin America and China, and that may skew my perspective (many of my clients come from Muslim countries, which seem to require longer background checks).
One final point: There have been rumors that the Asylum Division is terminating asylum grants for people from Ethiopia due to improved country conditions. In response to a question on this point, the Asylum Division states–
The Asylum Division initiates termination review when we receive person specific evidence that an individual asylee may be subject to termination of asylum status for any of the applicable grounds under 8 C.F.R. § 208.24. We have not issued any policy memos/directives/other information regarding the termination of asylum status based on the individual no longer having a well-founded fear of persecution due to changed country conditions in the individual’s country of nationality or last habitual residence.
In other words, there is no blanket policy to terminate asylum for Ethiopians. Whether this means that Ethiopian asylees are safe, I am not sure, but at least there is no general policy to terminate asylum in such cases.
So that’s the latest from the Asylum Division. If the recent agreement with Mexico blocks applicants from coming here, we might see resources moving from the border to the backlog, which could cause things to speed up. Only time will tell, and if there is news at the next Quarterly Meeting, I will try to post it here.
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.
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.