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.