I haven’t written about the asylum backlog in awhile. Mostly, that’s because the subject is too depressing. Cases are taking years. Many of my clients are separated from their spouses and children. A number of my clients have given up, and left the U.S. for Canada or parts unknown. The backlog has also made the job of being an asylum attorney more difficult and less rewarding–both financially and emotionally. That said, I suppose an update on the backlog is overdue. But I warn you, the news is not good.
The most recent report from the USCIS Ombudsman—which I have been trying not to look at since it came out in June—indicates that the affirmative asylum backlog (the backlog with the Asylum Offices, as opposed to the Immigration Court backlog) has increased from 9,274 cases on September 30, 2011 to 128,303 cases as of December 31, 2015. This, despite significant efforts by the Asylum Division, and the U.S. government, to address the issue.
The Ombudsman’s report lists five main reasons for the dramatic increase in backlogged cases: (1) high volume of credible and reasonable fear interviews; (2) a rise in affirmative asylum filings; (3) increased numbers of filings with USCIS by unaccompanied minors in removal proceedings; (4) the diversion of Asylum Office resources to the Refugee Affairs Division; and (5) high turnover among asylum officers. Let’s take a closer look at what’s going on.
First, the number of credible and reasonable fear interviews at the border have increased significantly over the last several years (when an asylum seeker arrives at the border, she is subject to a credible or reasonable fear interview, which is an initial evaluation of asylum eligibility). The numbers for FY 2015 were slightly down from a high of about 50,000 interviews in FY 2014, but FY 2016 looks to be the busiest year yet in terms of credible and reasonable fear interviews. The reasons that people have been coming here in increased numbers has been much discussed (including by me), and I won’t re-hash that here. I do suspect that the upcoming election—and talk of building a wall—is causing more people to come here before the door closes. Maybe after the election, regardless of who wins, the situation will calm down a bit.
Second, the number of affirmative asylum applications has also increased. There were 83,197 applications in FY 2015—up 130% from FY 2011. There are probably many reasons for the increase, but I imagine the chaotic situation in the Middle East, violence in Central America and Mexico, and political persecution in China are important “push factors.” The relatively strong U.S. economy and the presence of ethnic communities already in the United States are a few factors “pulling” migrants to our country.
Third, an increased number of minors in removal proceedings have been filing their cases with the Asylum Division. Unaccompanied minors who have a case in Immigration Court are entitled to a non-confrontational asylum interview at the Asylum Office. The number of these children requesting an interview has increased from 718 in FY 2013 to 14,218 cases in FY 2015, and these cases have added to the Asylum Division’s case load.
Fourth, President Obama has increased the “refugee ceiling” from 70,000 to 85,000. In order to process these cases and bring the refugees from overseas, the Refugee Affairs Division has been borrowing asylum officers—about 200 such officers will be sent to the RAD for two months stints. And of course, if they are working on refugee cases, they cannot be working on asylum cases.
Finally, the Asylum Division’s efforts to reduce the backlog have been hampered by a high turnover rate among Asylum Officers. According to the Ombudsman’s report, the attrition rate for Asylum Officers was 43% (!) in FY 2015. Some of the “attrition” was actually the result of officers being promoted internally, but 43% seems shockingly high.
As a result of these factors, wait times have continued to grow in most offices. The slowest office remains Los Angeles, where the average wait time for an interview is 53 months. The long delays in LA are largely because that office has a high proportion of credible and reasonable fear interviews (“CFIs” and “RFIs”). New York, which is the only office where wait times have decreased, has an average wait time of just 19 months. The NY office does not have a detention facility within its jurisdiction, and so there are fewer CFIs and RFIs. As a result, the NY office is better able to focus on “regular” asylum cases and can move those cases along more quickly.
The Ombudsman report also discusses post-interview wait times, which stem from “pending security checks, Asylum division Headquarters review, or other circumstances.” The wait time between a recommended approval and a final approval has increased from 83 days in FY 2014 to 105 days for FY 2016. Also, the delay caused by Headquarters review has increased to 239 days in FY 2016 (I wrote about some reasons why a case might be subject to headquarters review here). In my office, we have been seeing delays much longer than these, primarily for our clients from Muslim countries.
The report discusses delays related to Employment Authorization Documents (“EADs”). Regulations provide for a 30-day processing time for EADs, but USCIS “regularly fails to meet” that deadline. Indeed, the processing time for EADs at the Vermont Service Center is “at least 110 days,” which—based on my calculations—is somewhat longer than the 30-day goal. One improvement in this realm is that EADs for asylum applicants will now be valid for two years instead of one (this change went into effect earlier this month). If EADs are valid for a longer time period, USCIS will have fewer EADs to renew, and hopefully this will improve the overall processing time.
The Asylum Division has responded to this mess by (1) hiring new officers; (2) establishing new sub-offices; (3) publishing the Affirmative Asylum Scheduling Bulletin (I discuss why the Bulletin is not a good predictor of wait times here); and (4) developing new EAD procedures.
The number of new Asylum Officers has increased from 203 in 2013 to over 400, as of February 2016, and USCIS was authorized to employ a total of 533 officers in FY 2016. USCIS has also been trying to mitigate the high level of turnover. They created the “Senior Asylum Officer” position, which, aside from offering a fancy title, may allow for a higher salary, and they have scaled up their training programs in order to get more officers “on line.”
In addition, USCIS has opened new sub-offices, including one in Crystal City, Virginia, which will (hopefully) employ 60 officers to conduct exclusively CFIs and RFIs by phone or video link. Supposedly, the Crystal City office will assist Los Angeles with its CFIs and RFIs in an effort to reduce the close-to-eternal backlog in that office.
Finally, USCIS is trying to improve the EAD process. One change is that applicants who move their case from one Asylum Office to another will no longer be penalized for causing delay. Previously, if an applicant caused delay, her Asylum Clock would be stopped and she could not get her EAD. USCIS has also proposed a rule change so that an applicant’s EAD will automatically be extended when she files for a new card. I wrote about this proposed (and much-needed) change almost one year ago, and it has yet to be implemented. Lastly, as mentioned, EADs are now valid for two years instead of one.
So there you have it. There is no doubt that USCIS and the Asylum Division are making efforts to improve the situation. But unless and until the crisis at the border subsides, it seems unlikely that we will see any major improvements in the way cases are progressing through the system. So for now, we will wait, and hope.
President Obama said in a radio interview, “If you vote for a third-party candidate who’s got no chance to win, that’s a vote for Trump.” But for those planning to vote third party, it’s not simply the prospect of a President Trump that worries me. It’s also the idea that voting Libertarian or Green actually sets back the hope of growing those movements. Worst of all, voting third party represents an inability to compromise—and the ability to compromise is perhaps the most important characteristic necessary for democracy to survive.
Let’s set aside the third party candidates—Jill Stein of the Green Party and the Libertarian Party’s Gary Johnson—and whether they have the abilities needed to serve as President. For purposes of this discussion, it doesn’t much matter—they both have their strengths and weaknesses, as does Hillary Clinton. But unlike voting for Ms. Clinton, voting for a third-party candidate constitutes a triple threat to democracy. Why do I say this?
First, because Donald Trump is, himself, a threat to our country’s democracy. I won’t rehash all the ways Mr. Trump is unfit to lead our nation. I doubt anyone who reads this blog supports his bid for the White House. But I will note that for people like my clients–immigrants and refugees from majority-Muslim nations–this election is about life or death. Mr. Trump has threatened that if he wins the presidency, he would return Syrian refugees to their war-torn region: “If I won, they’re going back,” he’s said. Scapegoating refugees and immigrants is nothing new, but as a Jew whose European relatives were destroyed by Hitler, I know very well where this type of talk ultimately leads.
Further, Mr. Trump’s repeated comments about putting Hillary Clinton in jail reveal quite clearly his fundamental inability to lead a democratic society. It’s not just Ms. Clinton, by the way. Anyone who disagrees with Mr. Trump on policy, or who stands in the way of his bid for power is “stupid” or a “liar” or “corrupt” or a “fat pig” or should be thrown in jail (or worse). Maybe an uncompromising bully can succeed in the world of business, but that’s not how politics—particularly democratic politics—works. As President, you have to be able to talk to people who disagree with you: Leaders of other nations, members of Congress, governors, civic and business leaders. Even with regard to rivals, you have to find common ground in order to make progress and keep our country safe. Also, in a democracy, you have to make arguments to convince your opponents that you are correct. You have to persuade them. It’s hard to get cooperation or build coalitions when you threaten or denigrate anyone who disagrees with you. Indeed, this approach to governing is antithetical to democracy.
Second, I believe that voting for either third party candidate will set back progress towards a more viable multi-party (as opposed to two-party) system. I felt the same way about Bernie Sanders, even though his policies more closely align with my own beliefs. For a third party candidate to succeed in office, he or she needs a viable foundation upon which to govern. I am a member of the Green Party, and I will vote Green for the down-ballot candidates. For a Green Party (or Libertarian) candidate to successfully lead our nation, we need third-party governors, mayors, members of Congress, etc. This is how a movement is built: From the bottom up. It takes time, patience, and commitment. More, it takes many people willing to devote themselves to lower-profile races. If we had dozens of elected officials from the Green Party serving in local offices, we would be more ready for a Green President (ditto for the Libertarians). Without that, a third-party President would have no base to build upon, and I believe such a President could accomplish little. In this way, the third-parties’ focus on the presidency distracts from the real work of building a viable alternative to the Democrats and Republicans. And this, I believe, is bad for our democracy.
Finally, voting for a third party candidate threatens our democracy because it represents an inability to compromise. Compromise being essential to any democratic society.
Jill Stein has argued that voters should not have to choose a “lesser evil,” that she—and presumably Gary Johnson—represent a third way. This is false. Polling and social science data demonstrate that neither third-party candidate can win this election. Indeed, Gary Johnson—who is more popular than Jill Stein—has less than a 2% chance of winning even one electoral vote! Maybe you don’t believe the polls. Maybe you also think that global warming is a fraud, that cigarettes don’t cause cancer, and that vaccines cause autism. If so, you are probably voting for Donald Trump already. But if you live in the real, evidence-based world, here is some (non) news: Global warming is real, cigarettes do cause cancer, vaccines do not cause autism, and neither third-party candidate has any chance to win this election.
Perhaps you see your third-party vote as a boycott of “The System.” But that argument fails as well. If you don’t like the corporate policies of, say, Starbucks, you can stop buying their coffee and hope that the economic impact of losing your business will cause them to change their ways. But that’s not how it works with elections. “Boycotting” the election because you oppose the “lesser evil” only serves to empower the greater evil. It’s as if boycotting Starbucks would encourage them to continue the very policies you oppose. In other words, boycotting the election will have the exact opposite effect of what was hoped for.
We live in a democratic republic. If we had a different system—like a parliamentary democracy—voting third party might make sense. Once the elected officials are in office, they themselves would have to make the compromises necessary to forge a ruling coalition. But in our system, we, the people, elect a President. We have to make those compromises ourselves. And of course, making compromises is not easy—not getting your way never is. But that is our system, and for now at least, this is our choice: Vote for Hillary Clinton or for Donald Trump. The others are just a dangerous distraction from reality.
And now, part 2 of my interview with Paul Wickham Schmidt (if you missed part 1, it is here):
ASYLUMIST: Your Chairmanship ended in April 2001, a few months into the George W. Bush Administration. What happened?
PWS: John Ashcroft was President Bush’s first Attorney General. He was advised by Kris Kobach, who was then at DOJ. Kobach is now Secretary of State in Kansas and is well known for his outspoken restrictionist positions. Ashcroft and his people did not like some of the Board opinions, and they particularly did not like Board Member Lory Rosenberg and several others of us. They apparently thought the Board was too liberal, even though the so-called “liberal wing” was consistently outvoted on almost all meaningful precedents where there was a “split Board.”
I’d add that the dissenters have eventually been proved right by subsequent decisions from the Federal Courts and even from the BIA itself on issues like protection for domestic violence victims, more critical examination of IJ credibility decisions, application of the categorical approach and modified categorical approach to crimes, and a less restrictive approach to CAT protection. Board Member Rosenberg was known for being quite outspoken in separate opinions criticizing some of the BIA’s jurisprudence. But, she often was proved right over time. Indeed, the Supreme Court favorably cited one of her dissenting opinions, something that, to the best of my knowledge, no other Board Member has ever achieved. So, in many ways we were punished for being ahead of our time.
About a week after Ashcroft got there, EOIR Director Kevin Rooney told me that the DOJ leadership wanted me out as the Chair. It wasn’t Kevin’s decision. He made it clear that he was just the messenger. Because I was a career member of the Senior Executive Service, this decision probably violated Civil Service rules which would have required the new Administration to keep me in place for a period of time – perhaps 120 days – before booting me to another position. But I realized that if Ashcroft didn’t want me, I could not survive in the job, and dislodging me might hurt the BIA by provoking an attack on the entire institution to justify removing me. I wanted to resolve the situation; not stretch it out, and I wanted something workable. If I had resisted, it might have been a little hard to justify moving me, since I had all outstanding performance reviews with SES bonuses up until that point, but then they could have started attacking the Board, and I did not want that.
I was not ready to go back into private practice. Also, I did not want to move to another location — at the time, I was taking care of my dad, who was in a retirement home near the BIA. Also, I wanted to avoid becoming a “hall-walker” at the DOJ.
I asked Kevin what I could do. I thought (completely naively as it turned out) that they might need some loyal opposition, so I asked whether I could step down as Chair and go to the BIA as a Board Member. Eric Holder, Deputy AG, a Clinton appointee at DOJ, and future Attorney General under President Obama, was still there during the transition. If he had been gone, who knows what would have happened? Also, there had been a regulation change creating more BIA positions. So we agreed that I would step down as Chair, and with Eric Holder’s assistance, I become a BIA Board Member.
It all happened quickly—in a week. I announced that I was stepping down as Chair. It was a fake-y announcement. I said I wanted to spend more time adjudicating cases and less time managing. Lori Scialabba, who was one of my Vice Chairs, and is now the Deputy Director of USCIS, became Acting Chair. I did not change my views about the law; I regularly voted against the majority on issues that were important to me, particularly asylum and other protection issues. But I continued doing my job.
Then came the reorganization where Ashcroft cut Board Members. He removed Board Members John Guendelsberger, Cecelia Espenosa, Lory Rosenberg, Gus Villageliu, and me. Technically, Lory left before the final cut, and another Board Member who undoubtedly would have been axed, applied for a voluntary transfer to an IJ position in another city. I learned about it when Kevin Rooney (who at one point was my career hero) called me up to his top floor office. He was shaking, and he told me, “You did not make the cut.” He said, “They did not like some of your opinions, particularly dissents where you joined with Lory Rosenberg.”
There was no application or interview process to decide who should stay and who should go. There was no interview. The reason I was cut is because they did not like my opinions—Ashcroft apparently wanted a cowed, compliant Board where nobody would speak up against Administration policies or legal positions that unfairly hurt migrants or limited their due process.
Part of the stated rationale for the reorganization was that there were too many Board Members and it was too contentious, and therefore not “efficient.” In the Government immigration world, “efficiency” is often a buzzword for actions that take away or reduce the rights of migrants. But the workload clearly demanded more than the 12 Board Members that Ashcroft left. A few months after the cut, they had to start using BIA staff attorneys as “temporary” Board Members because they needed more Board Members to do the work. Some of these attorneys eventually became Board Members. So they were upgrading staff, rather than doing independent hiring. Basically, this was a cover up for Ashcroft’s inappropriate and politically motivated reduction in permanent Board Members. The real reason for the reduction in the BIA’s size was to eliminate opposing views from the dialogue.
ASYLUMIST: How do you think these changes have affected the Board?
PWS: Well, the picture has not been pretty. The summer of 2000 was the last time that an outsider was appointed to the Board. In my view, many of the current Members are “going along to get along,” because the clear message of the Ashcroft cuts was that resisting the majority, particularly speaking up for the rights of migrants, could be career threatening. The Board has abandoned the pretense of diversity. Also, the idea that they can operate effectively with a smaller number of Members is simply a ruse. The BIA uses temporary Members to fill the gap. But they cannot vote en banc, so this truncates the en banc process. The Board ends up rubber-stamping cases. Also, since mostly three-Member panels, rather than the en banc Board, now issue precedent decisions, the majority of Board Members are able to escape accountability on most such cases because they don’t have to take a public vote. Only the votes of the three panel members are publicly recorded. The BIA also seldom hears oral argument anymore, so it has become very distant and inaccessible to those most affected by its decisions. Moreover, quietly and gradually, the BIA has had to add additional permanent Board Members because the Ashcroft cuts left the BIA short of the number required to do the work. But, there never has been a public acknowledgement by EOIR or the DOJ of what Ashcroft did and why it has been necessary to take corrective action.
I respect the current Board Members, indeed many of them are personal friends, and I certainly recognize the difficulties of their job. But, almost none of the current Board Members have substantial achievements in the private immigration sector, particularly in the area of asylum scholarship and asylum advocacy. They are all appointed from within Government, which is often viewed as a way of bringing in reliable “company people,” who won’t rock the boat. This is supposed to be the Supreme Court of immigration. But it is not actively trying to attract the best and brightest from all sectors of immigration practice, including private practice, academics, clinical professors, and NGO leaders, in addition to those with substantial achievements in government service, in a fair competitive selection process.
One problem is that Board Member positions are less attractive today because they are less visible, less secure, and viewed by some as an assembly line operation after the Ashcroft reforms. A Board Member can be moved to the FOIA unit if they are out of political favor. As a result, the Board doesn’t get the type of outside applicants it really needs – partners in major law firms, tenured academics, respected clinical professors, and high ranking NGO officials, at a time when our system needs their voices more than ever. The example set by Ashcroft is continuing—the current Administration has not changed that. Board Members do not rock the boat, and they all too often do not reflect or fully understand the needs of other constituencies from outside government service, particularly the needs of asylum seekers and others seeking protection in today’s chaotic Immigration Courts.
Maybe the BIA has reduced the backlog, but that has been done with smoke and mirrors. The quality of work has fallen off. They reduced the backlog by compromising the most important function of Board: Guaranteeing due process to individuals appearing in Immigration Court, which requires courageous public deliberation and spirited dialogue on the most important and controversial issues, where dissenting positions are accepted as an essential part the judicial dialogue and therefore supported, rather than suppressed. In my view, since the Ashcroft purge, the BIA has become a deliberative body that no longer publicly deliberates. That’s bad for the public, bad for the justice system, bad for due process, and, actually, bad for the Board Members themselves
ASYLUMIST: And what happened to you, after the “purge”?
PWS: I thought about volunteering to become an IJ, but then I would have had to leave Washington, DC. I did not want to leave my community, plus my dad was still in the area. Kevin floated the idea of early retirement, but I did not want that either.
EOIR created non-judicial positions for some of the “cut” Board Members, like glorified staff attorney positions or senior jobs in the General Counsel’s Office. To show how ludicrous this was, at a time when the Board needed experienced judges more than ever, some of the top judges in the system, who had been selected following a competitive nationwide search, were sent off to perform non-judicial work at the same salary. There was an almost immediate adverse reaction from the Circuit Courts as the Board launched many “not quite ready for prime time” decisions into the judicial review process.
Kevin said I could become an Assistant Chief Immigration Judge (“ACIJ”), but no position was open at the time. I waited for weeks. I was going to be out as a Board Member, but I had not been reassigned. EOIR sent me to IJ training school, but I was still part of the BIA. I went to en banc meetings, but I sat mute. After the IJ training, I did not have a start date or a position. I was a “lame duck,” and I was angry and frustrated.
Finally, I told Kevin that I had to go. There was no reason for me to be there. My things were packed. But then he told me that Ashcroft had directed that I be moved to an IJ position in Arlington, Virginia. He told me that a vacancy had been created overnight, and the Attorney General moved me to the top of the “waiting list.” The Arlington Court was a desirable posting, so there was a waiting list for internal transfers there. Kevin said that someone decided I should be in an adjudication position. It was a huge break for me to get out of the Headquarters “Tower” in Falls Church. I doubt that I would have remained at EOIR as long as I did if I had been in the Tower. I had too much pent up anger, and the Tower would have reminded me of it every day. The Arlington Immigration Court was a great chance for me to put all of that behind me.
I think someone went to bat for me at the Department; I had no relationship with the Attorney General, so I theorize that someone must have intervened on my behalf to put me in Arlington. So, I’m probably the only Immigration Judge who got the position without ever applying for it.
ASYLUMIST: We’ve only covered about two-thirds of your career, but I know you need to get back to the really important things in life, like your kayak, so I’ll ask one last question: Suppose you were the “Immigration Czar,” what would you do with EOIR?
PWS: As you know from history, being a “Czar” of anything can be a life-limiting opportunity. Having had several “career-limiting opportunities” already, I think I’ll take a pass on that job. But seriously, I’m glad you asked the question. Here is my “five-point program” for a better Immigration Court–one that would fulfill its vision, drafted by a group of us when Kevin Rooney was the Director: “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all.”
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best. Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos. Evidently, the idea of the prioritization is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts.
Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. If there are to be nationwide policies and practices, they should be developed by an “Immigration Judicial Conference,” patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary “consumers” of the court’s “product.”
Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Council. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system like ours. The judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds–particularly those with expertise in asylum and refugee law–have been so few and far between.
Fourth, as you know, I would repeal all of the so-called “Ashcroft reforms” and put the BIA back on track to being a real appellate court. A properly comprised and functioning BIA should transparently debate and decide important, potentially controversial, issues. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca and the BIA itself in Mogharrabi are not being followed.
Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.
ASYLUMIST: Very ambitious! I’d love to hear more, but that would probably take another day or two.
PWS: Thanks for the offer. But, all things considered, I’m heading out onto Linekin Bay in my kayak. Due process forever!
ASYLUMIST: Thank you so much for your time and your thoughts. Happy paddling.