For Asylum Seekers, Filing On Time Is (Almost) Half the Battle

If you look at the most recent statistics from the Asylum Division, the likelihood of receiving asylum affirmatively is only about 27%, nation-wide. However, if you remove people from the mix who filed late, or who failed to appear for their interviews, the situation is better: Nearly half of such cases (49%) were approved.

The obvious lesson here is this: If you want to win asylum, file your application within one year of arriving in the United States and show up for your interview.

That’s the nation-wide picture, but when we look at data for the various Asylum Offices, things become less clear. Different Asylum Offices have very different denial rates for one-year bar cases (asylum seekers are required to file for asylum within one year of arriving in the United States or to meet an exception to the one-year rule; otherwise, they are barred from receiving asylum). The table below shows the likelihood that a particular Asylum Office will deny (or more politely, “refer”) an application for failure to timely file (the chart excludes cases where the applicant failed to appear for an interview):

Asylum Office Percentage of Cases Referred to Court for Failing to File Within One Year of Arrival
Arlington 34.2%
Boston 52.9%
Chicago 13.2%
Houston 13.8%
Los Angeles 16.8%
Miami 40.3%
Newark 33.9%
New York 53.6%
New Orleans 27.3%
San Francisco 20.6%
United States 30.6%

Why should the different offices be so different in terms of late-filing referrals? It seems to me that there are two possible explanations, broadly speaking: Either the Asylum Offices are responsible for the disparity, or the asylum seekers themselves are responsible.

Unless you have a time machine, it’s best to file asylum before the one-year deadline.

The first possibility is that certain Asylum Offices are more aggressive than others about enforcing the one-year bar. I know this is the case with Immigration Judges. I am thinking of two IJs in my local court (two of my favorite IJs, by the way). I have presented several one-year bar cases to these judges. One almost invariably denies the asylum application based on the late filing (though in my cases, he granted other, lesser relief); the other looks to the “spirit” of the rule, and as long as the applicant did not have a bad intention (for example, to commit fraud), he usually excuses the late filing. It’s easier to see how this could happen with individual judges, rather than as an office-wide policy, but I suppose this is one possible explanation for the variability between Asylum Offices. If this is the correct explanation, then it makes sense for late filers to choose more friendly offices, such as Chicago or Houston, to file their cases (meaning, such people would have to live in the jurisdiction of these offices).

The other possible explanation is that the different offices are receiving different types of cases. Maybe asylum seekers in New York are too busy or too ill-informed to file their cases on time, while those in Houston have more free time, or are just more conscientious. To me, this seems a bit far-fetched (though I guess New Yorkers are pretty busy). Or maybe it has to do with the different populations served by each office. Maybe–for example–Chinese applicants are more likely to file within one year of arrival, since the Chinese community is well-aware of the one-year rule. In contrast, perhaps Central American applicants tend to arrive in the U.S. without an initial intention to seek asylum, but then decide later that they cannot return home, and in this way, they run afoul of the one-year bar. If LA has more Chinese applicants and New York has more Central Americans, perhaps this could explain the disparity. If (and its a big if) this explanation is correct, then it really doesn’t matter where you apply for asylum, as the different Asylum Offices are not responsible for the uneven one-year denial rates.

A third, hybrid explanation is that some Asylum Offices are cherry-picking their cases, and interviewing more one-year bar cases than timely-filed cases. We know, for example, that the Asylum Offices sent letters to asylum applicants who filed after 10 years in the U.S. and offered them an option to skip the interview and go directly to Immigration Court. If some offices, and not others, are deliberately selecting late-filed cases to interview, that could explain the disparity. 

Frankly, I do not have much confidence in any of these explanations. But the disparity does exist and the fact is, some Asylum Offices are significantly more likely than others to deny asylum based on the one-year bar. So what can you do with this data? Does it mean that if you are filing after the one-year deadline, you should avoid Boston and New York, and instead file in Chicago, Houston or LA?

Given that it is difficult to draw a firm conclusion from the data, and given the severe consequences of filing late, the simple answer is to avoid the problem altogether by filing your asylum application on time. For those who miss the one-year deadline, it is important to prepare an explanation (with evidence) about why you filed late (I wrote about that here). This advice applies regardless of which office has your case. But I suppose the question here is: If you are filing late, should you move to a jurisdiction with an “easier” Asylum Office? (And remember, if you want your case heard by a certain office, you have to live within the jurisdiction of that office–you can check which office will adjudicate your case here).

I hate giving advice about where a person should live, but looking at the available data, it is impossible to say that a late-filer is not better off in one of the “easier” offices, like Chicago, Houston, LA or San Francisco. Obviously, there are other factors to consider–most people have to live where they have family support or a job. Also, in some instances, the one-year bar is easily overcome (for people who are still in status, for example) and so there is no reason to worry about which office has your case. But for those with more difficult one-year bar issues, it may make sense to “forum shop” and move someplace with an Asylum Office that is less likely to deny a late-filed application. 

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155 comments

  1. Hi Jason

    I just got denied my asylum and i was told to appear before a judge next yer February 2020 in what is called a Master Hearing. 1. Do i need to go with a lawyer for the hearing? 2. If this one fails does it mean an automatic deportation? 3. Do you have any idea what they want me to prove for the Master hearing because I thought i exhausted all the explanation and evidence during my first interview. 4. Is my clock still moving for me to apply for EAD or when denied me thats when the clock stopped?

    Asking for someone
    How long does it take for an EAD card to come after receiving the 6 months extension (on paper) . They received 6 months extension but its just a letter, in February, when can they expect the real card and will it be 6 months or more time added?

    Thank you

    Reply
    • 1 – I did a blog post on March 7, 2018 that describes the process when you get referred to court. 2 – The Master is the first hearing. Usually, the second hearing is the trial. If you lose that, the judge could order you deported. You can appeal. 3 – You present the case again from the beginning, but you do that at the second hearing, not the Master Calendar Hearing. 4 – It should still be moving unless you caused a delay in the case. 5 – We are seeing EAD renewals take between 3 and 6 months. Take care, Jason

      Reply
  2. Hi There Jason,

    I appreciate all the work that you do and help that you provide on this blog. I have a question regarding my I-589 application, that I submitted and mailed to the Texas Service center using certified mail on 12/27/2019. I received the mail notification, end of January this year and have not heard anything back till date- not even the receipt back. How can I check the status of my case, without the receipt or Alien #?
    Thank you for help.

    Reply
    • I assume you mailed the I-589 in December 2018. In that case, you should have received the receipt months ago. I-589 forms can disappear at the Texas Service Center, especially for people who had a prior application for asylum, or who were/are a dependent on a previously filed application. If that is you, or if you just never received a receipt, you can try emailing the Texas office to ask: tsc.ncscfollowup@dhs.gov. If that does not help, try contacting your local asylum office to inquire. You can find their email if you follow the link at right called Asylum Office Locator. Keep in mind the one-year bar, and if that is a problem, you may need to file a new application. Finally, if you file form G-639, available at http://www.uscis.gov, you can get a copy of your file (for free), which may indicate that it has been received. Take care, Jason

      Reply
  3. Hi Jason,
    Great read.
    I am 200 days around on my pending application. last week I visit the asylum office in San Francisco. They shortlisted my case. How long normally it takes when you are in shortlisted. I already have my work authorization card. can I work on contract job in any other state when my case is still pending,if the employer is based on California?

    Reply
    • I do not know how long it takes, but they can call you with only a day or two notice, so you should make sure your case is complete and everything is filed in case they do call you. As for short term work in other states, that should be fine, as long as you do not permanently give you your address in the SF office’s jurisdiction. Take care, Jason

      Reply
  4. Hi Jason,
    Thank you for writing great articles on asylum process. In this article, you mentioned that you have presented several cases of late filing in front of IJs. You noted that one IJ invariably denies, while the other IJ is more lenient. Isn’t it a law that late filing could be overcome in situation such as change of country conditions? Or is it up to the IJ to give or deny an asylum even if you managed to prove the late filing is permitable under the law? If the asylum applicant is in defensive process and offer a voluntary departure in the event of asylum denial, what other steps could be done after the verdict? Thank you so much for answering these inquiries.

    Reply
    • The IJs both follow the law, but they interpret it more or less strictly concerning the one-year bar. So one IJ may accept mental distress as an exception to the rule, while the other may not view that distress as enough to warrant an exception. Unfortunately, there is not a lot of guidance from the appeals courts and the BIA about how to interpret the rule, so IJs can reasonably reach different conclusions on the same facts. If a person gets voluntary departure, either they leave the US or they can appeal the denial of asylum (and any other relief). Those are normally the only options. Take care, Jason

      Reply

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