EOIR’s Experimental “Pilot Program” Devastates Asylum Seekers

by Jason Dzubow on December 5, 2011

The New York Times recently reported on a new policy at the Department of Homeland Security (“DHS”) and the Executive Office for Immigration Review (“EOIR”) designed to prioritize the removal of criminal aliens.  Under the policy, DHS will review cases and terminate proceedings for aliens deemed a low priority for removal.  At the same time, EOIR (the Immigration Courts) will re-arrange its dockets to expedite priority cases.  From December 4, 2011 to January 13, 2012, EOIR will be implementing the Prosecutorial Discretion Pilot Project in Baltimore and Denver.  The results for aliens seeking asylum are already pretty devastating, and if the program goes national in its present form, we can expect serious problems for many asylum seekers.

Some experiments have unintended consequences.

My first experience with the program came last week when we received notice that my client’s Individual Hearing was re-scheduled from this December to May 2014 (yes, that is 2014, almost 2.5 years from now).  The man is an Eritrean national who fled persecution in his homeland.  He has a decent case and he had been hoping for a resolution later this month.  Now he must wait until 2014.  He has no work permit and the Asylum Clock is stopped in his case.

According to EOIR, the goal of the Pilot Program is “to ensure that [limited] resources are focused on the Administration’s highest immigration enforcement priorities.”  Unfortunately, in this case, the Administration’s “enforcement priorities” (i.e., removal of aliens) comes at the expense of our country’s humanitarian obligations.

Part of the problem, I think, is the government’s attitude, articulated by the Supreme Court in INS v. Doherty, 502 U.S. 314, 323 (1992), that “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”  I have always felt that this statement reflects an insensitivity and ignorance about many aliens who are in the U.S.  While some aliens do merely hope to delay their removal, asylum seekers wish to see their cases resolved as quickly as possible.  There are a number of reasons for this: Asylum seekers are hoping to petition for their family members, some of whom face threats in the home country; asylum seekers fear return to their country, and waiting for years to learn their fate is extremely stressful; many asylum seekers are young and hope to study in university, which is difficult without lawful status; many asylum seekers are well educated and hope to find professional jobs, which is also difficult without status.

For all these reasons, delaying asylum hearings for 2+ years is devastating to many asylum seekers.

The Pilot Program is going forward, and I imagine that the same or similar policies will be adopted throughout the U.S.  Given this new reality, here are a couple suggestions about how EOIR can mitigate the difficulty to asylum seekers and other aliens who are hoping for a resolution of their cases:

– When an asylum case is postponed, the Asylum Clock should start automatically, so that the asylum seeker can obtain her work permit.

– EOIR should reserve some time slots in the (relatively) near future for asylum seekers and others whose cases have been postponed.  Aliens that wish to have a sooner resolution of their cases can file motions to expedite.  Thus, for example, if EOIR reserved some time slots in 2012, my 2014 client could file a motion requesting one of those dates.

Finally, while it might be futile to argue that we should not be prioritizing removals over protecting people fleeing persecution, I want to give it a try.  Statistically, most removals involve people with no criminal histories.  Even many “criminal aliens” are convicted of very minor violations (driving without a license, using a false ID, and drunk in public are three common violations).  The benefit to the U.S. of removing these people quickly–and often separating them from their family members–is pretty minimal.  On the other hand, as discussed above, the harm of leaving legitimate asylum seekers in limbo for long periods is severe.  If these competing interests are balanced, it seems unjust that asylum seekers should never receive priority over the removal of “criminal aliens.”  EOIR should re-think its policy to account for the needs of legitimate asylum seekers.

{ 4 comments… read them below or add one }

Mike Kershow December 28, 2011 at 2:07 pm

Hi Jason. The points you make are irrefutable. To me, the more fundamental question is why any case in which asylum is being requested is even subject to the Pilot Program in the first place. Under the program, continuances are supposed to be given so that DHS can have time to decide whether to exercise discretion and provide relief from removal without the need for court approval. But I can see NO discretionary relief that DHS can provide that would be tantamount to a judicial grant of asylum — and so by definition, the applicant is severely prejudiced.

The bottom line is that asylum cases should be excluded from the program for this fundamental reason — and for the other reasons you mention as well.


Jason Dzubow December 28, 2011 at 10:09 pm

Hi Mike – I think your solution–to exempt asylum cases from the pilot program–is exactly right, and probably more strait forward than my ideas. Thank you for the comment, Jason


Jimmy Davis December 5, 2011 at 9:00 am

Hi Jason,

First, great blog. I’ve been following it for a while now, and it seems a great source of information (and surprisingly entertaining for the subject matter).

It’s a shame this new program is hurting asylum cases. My one hope, at this point, is the Motion to Advance. While likely unhelpful in most removal cases, it seems that it may open the door to getting cases like yours back on track.

In a recent email, the AILA DC chapter advised that “Examples of circumstances under which a hearing date might be advanced include:
imminent eligibility for relief, a health crisis necessitating immediate action by the immigration judge, or other emergent situation of similar gravity. A Motion to Advance should completely articulate the reasons for the request and the adverse consequences if the advanced hearing date is not accepted.” They also note that such motions are “disfavored” by the court.

While it isn’t ideal – and living under the mercy of a pending motion is never ideal – it does seem like it has the potential to help. Of course, how these motions are handled under the pilot program is yet to be seen. It seems reasonable for the IJ’s to apply this exception somewhat liberally to asylum cases for the reasons you mention.

Fingers crossed, and good luck to your client.

-Jimmy Davis


Jason Dzubow December 5, 2011 at 12:36 pm

Thank you – I agree that the motion to expedite is the best hope, However, as you point out, they are disfavored, and they are frequently denied. Meaning, we need to do them (and perhaps charge the client for them) without knowing whether they will work. Given these very long delays, I am proposing that the court specifically set aside some dates for aliens who wish to expedite. Other aliens–who only want a delay–will not file such motions. At least this would allow people who want to resolve their cases more quickly to have a high likelihood of having the case expedited.


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