Based on the latest data (from July 2020), there are more than 22,000 asylum cases that have been interviewed, but where the Asylum Office has not yet issued a decision. Some of these cases have been pending decisions for months or even years. What’s the reason for this post-interview delay, and what can you do if you were interviewed, but have not received a decision?
First, let’s talk about some reasons for delayed decisions. One common reasons is the security background check. Before a case can be granted, each applicant is subject to a background check. This somewhat mysterious process involves reviewing multiple government databases to determine whether there are any “hits,” meaning that the person’s name or information raises a security concern. Such checks are largely outside the control of the Asylum Office, and can cause significant delay. At least in my experience, the delay tends to be worse for people (especially men) from majority Muslim countries. While background check delays are common for Asylum Office cases, they are almost non-existent for Immigration Court cases. Why this should be, I do not know. I once asked a prior Asylum Division Director about the discrepancy, and the only explanation I received was that the background checks are different at the two different agencies.
Another reason for delay is that each case needs to be reviewed by a supervisor, and the Asylum Offices are apparently short of supervisors. Related to this is the high turnover rate for Asylum Officers. When officers leave without completing a case, this seems to cause additional delay (since another officer has to review the case, get up to speed, and then complete the work).(more…)
Here’s a question that I often hear: My friend filed for asylum after me and she already had her interview. Why didn’t I get my interview yet? As with most asylum-related questions, the answer is, it’s complicated.
As you probably know, the Asylum Office is operating under the LIFO–Last-in, First-out–system. This means that new cases get priority over old cases. LIFO was implemented in January 2018 with the hope that it would reduce fraudulent asylum filings. The idea is that if the Asylum Office can quickly interview and deny fake cases, it will reduce people’s incentive to file such cases. In turn, this will lead to fewer new asylum applications, which will reduce the backlog and help legitimate asylum applicants.
Of course, things did not work out as planned. The first problem is that the premise of LIFO is simply wrong: The system is not being overwhelmed by fake asylum cases. Even if it were, LIFO provides no real disincentive for applicants to file fraudulent cases. That’s because from nearly the moment it was implemented, LIFO didn’t work. There were always too many new cases to interview. As a result, some new cases got fast, LIFO interviews; others did not. Since there was never a very high probability of receiving a quick interview, LIFO did little to dissuade the hordes of supposedly-fraudulent asylum seekers from filing their cases.
There are different types of benefits available to people seeking asylum and people who have been granted asylum. Here we will discuss certain “benefits” – such as work permits, travel documents, and Green Cards – available to asylum seekers and asylees, and how these benefits can be improved.(more…)
President Biden has sent Congress a sweeping immigration bill that embraces America’s commitment to immigrants, a commitment the Trump Administration tried to destroy. The legislation outlines a pathway to citizenship for 11 million undocumented individuals and provides $4 billion to Central American countries to reduce the violence and poverty that push so many to emigrate. It also increases the number of judges in immigration courts. These are welcome proposals.
But the bill promises little to torture survivors and other affirmative asylum seekers. It fails to address a hidden asylum crisis in our country, a crisis not as visible as the migrants being detained by Immigration and Customs Enforcement (ICE). Many torture survivors and thousands of other affirmative asylum seekers have been waiting four, five, and even six years to have their cases heard in the Asylum Office, a division of the U.S. Citizenship and Immigration Services (USCIS).(more…)
According to the most recent data, as of “July 31, 2020, USCIS had 370,948 asylum applications, on behalf of 589,187 aliens, pending final adjudication.” “Over 94% of these pending applications [about 348,691 cases] are awaiting an interview by an asylum officer.” The remaining cases–approximately 22,257–have been interviewed and are waiting for a decision.
In terms of resources, the most recent information I could find is from May 2019. At that time, there were 763 Asylum Officers and 148 supervisory officers. While the majority of these staff members was devoted to interviewing affirmative asylum seekers, “over 200 officers” were assigned to conduct credible fear interviews at the border (a credible fear interview or CFI is an initial evaluation of asylum eligibility). Assuming everything remains the same (meaning that there are about 563 officers available for affirmative cases) and assuming each officer conducts eight interviews per week, it would take about 15 months to get through the entire backlog–if no new cases enter the system.
Realistically, though, new cases are continuously being filed, Asylum Officers probably can’t adjudicate eight cases per week for 52 weeks a year, and–given the mess at the Southern border and President Elect Biden’s plan to send more resources to that region–it is likely that many more than 200 officers will be assigned to CFIs (which will make them unavailable for “regular” affirmative asylum interviews). In short, even if the pandemic magically disappears, it seems unlikely that we can get through the backlog anytime soon. We are today facing the same problem that has dogged the asylum system since at least 2013: There are too many cases and not enough officers.
So what can be done?
Hire More Officers: One obvious solution is to hire more Asylum Officers. While the President Elect has not indicated whether or not he would hire more AOs, he has set forth an ambitious humanitarian agenda for the U.S.-Mexico border, and it seems impossible that he could fulfill that goal without hiring many more Asylum Officers. Of course, this would cost money, and it is unclear whether USCIS has the means to pay for more officers or whether Congress would be willing to increase the agency’s budget.
Even if there is no additional money available, there are steps Mr. Biden can take to improve the asylum system.
More Efficient Scheduling and Shorter Interviews: The data I found (pre-pandemic) shows that roughly 8% of asylum applicants are “no shows” for their interviews and another 15% cancel their interviews (what percentage of these are rescheduled, I do not know). This makes sense, given the long gap between filing for asylum and attending an interview: People leave the U.S. or find other ways to obtain status here; others fail to update their address and so never receive notice of the interview. To mitigate this problem, Asylum Offices schedule more interviews than they have the capacity to conduct, with the expectation that some applicants will not appear. This seems to me a huge waste of energy. Why not call applicants a few weeks in advance to determine whether they intend to appear for their interview? This should be done after the interview notice is mailed out, and that notice should indicate that the applicant will receive a call from the Asylum Office. Applicants who fail to respond to the phone call can be rescheduled and sent a warning letter by mail. Those who still do not respond can then be referred directly to Immigration Court. Where possible, the calls and notices should be in the applicant’s native language.
There are other benefits to calling applicants prior to the interview: They can be reminded to submit all evidence in advance, and can be queried about what language they will speak at the interview. They can also be told to review the I-589 form and determine in advance what updates and corrections are needed. Better yet, the asylum interview notice can include a form to update the I-589, which is often submitted years before the interview. While not all applicants will be able to complete such a form on their own, many can, and this will save significant time at the interview.
Another way to save time at the interview would be to include a copy of the “bar” questions along with the interview notice. The “bar” questions determine whether a person is barred from receiving asylum (because they are criminals or terrorists, for example). Why not require applicants to review these questions ahead of time, and then certify at the interview that they read and understood each question? Most people will answer “no” to all the bar questions, and if the officer has specific concerns, she can raise those at the interview. Also, while we’re on the subject of bar questions, why do the officers need to ask these questions to children? I’ve seen officers question dependent children as young as three or four years old about whether they are terrorists. It’s just plain silly (though it can be entertaining). We would save a lot of time and trouble if parents could answer these questions for their minor children, or at least for children under a certain age–say 14 or 15.
LIFO vs. FIFO: Another issue related to scheduling is The Great LIFO-FIFO Debate–whether cases should be interviewed in the order received (first-in, first-out or FIFO) or whether the newest cases should receive priority (last-in, first-out or LIFO). All Asylum Offices are currently operating under the LIFO system. The logic is that interviewing new cases first will deter fraudulent asylum seekers, since they won’t be guaranteed a years-long wait for their interview (during which time they can live and work in the U.S.). The Asylum Division believes LIFO is working, as there was a 30% drop in new filings after it was implemented. However, I hope they will revisit this finding. My sense is that any decrease in filings was unrelated to the LIFO policy and instead came about for other reasons, such as fewer people arriving in the U.S. due to stricter visa requirements.
Also, from the perspective of asylum seekers, LIFO is very unfair. Old cases are given the lowest priority, meaning many people will (seemingly) never get to the front of the line. These applicants are facing severe hardships, including separation from family and endless uncertainty. At a minimum, a certain percentage of officers should be assigned to work on backlog cases, starting with the oldest. Better yet, we should return to FIFO and the Asylum Office Scheduling Bulletin, so we will have a more orderly and predictable process for scheduling interviews.
Create Rules for Expediting: One final point about scheduling interviews: We need a more formal system for expediting cases. Currently, it is possible to expedite, but there really are no rules about who is eligible to expedite or about what constitutes a valid reason to expedite. The predictable result is that many people try to expedite, which wastes Asylum Office staff time and also makes it more difficult for the most needy people to expedite their cases. There should be a national policy with publicized criteria about who is eligible for expedition. In my person opinion, the first priority should be people who are separated from their family members, especially minor children. For me, a distant second is a person with a documented mental or physical health issue. Until the Asylum Offices can expedite all the people in these two categories, I see no reason to allow for any other category of applicant to request expedited processing.
Premium Processing: A more radical idea to address the backlog–and one that I’ve been pushing for a while now–is premium processing for asylum seekers. Premium processing already exists for several USCIS forms, and allows an applicant to pay an additional fee (currently between $1,500 and $2,500) for faster processing of her case. Affirmative asylum seekers–in contrast to refugees–have paid their own way to the United States, and so presumably, many of them could afford an additional fee for premium processing. Also, while the idea of asylum seekers paying for their cases may seem unpalatable, the Trump Administration has already implemented a non-waivable $50 fee for all asylum applicants (as of now, that fee has been blocked by a federal court), and so the taboo of paying for humanitarian protection has already been broken. Thus, as I see it, there is no valid objection to implementing premium processing for asylum seekers, and–given the overwhelming humanitarian need–it is a solution whose time has come.
How would premium processing help? For those who pay, their cases would be interviewed more quickly. How quickly, I do not know, but premium processing for other USCIS forms is currently 15 days. I doubt that time frame would be realistic for an asylum case, but perhaps 60 or 90 days would be achievable. Even those who cannot pay would benefit, as the infusion of money into the system would benefit all applicants. An added benefit from the government’s viewpoint would be that faster processing would–if we accept the LIFO logic–help discourage fraudulent applications. So premium processing is a win all around: For the applicants who pay, for those who do not pay, and for the U.S. government.
Eliminate the Asylum Office: A final idea–perhaps the most radical of all–is to eliminate the Asylum Office altogether, at least for most cases. Under the current system, an applicant files an asylum case, and if he loses, his case is usually referred to Immigration Court where an Immigration Judge reviews the case de novo and issues a brand new decision. As an advocate, I am grateful for a second chance to present my clients’ cases. But in terms of “the system,” this type of redundancy is not very efficient. One solution might be to shift all asylum cases where the applicant is out-of-status to the Immigration Court. Or maybe just leave vulnerable applicants–such as minors–at the Asylum Office. While this idea has been floating around for years, it is still unclear whether it would result in more or less efficiency. In any event, given the current mess, nothing should be off the table, and the idea of (mostly) eliminating the Asylum Office might warrant further study.
For the sake of asylum seekers and their families, and for the integrity of our humanitarian immigration system, we need major changes to the affirmative asylum system. Perhaps some of these ideas can contribute to that effort.
Let’s take a break from the doom and gloom associated with the President’s ongoing effort to subvert our democracy and look at something a bit more cheery–A new edition of the book My Trials: Inside America’s Deportation Factories by Paul Grussendorf. Judge Grussendorf’s 35-year career has spanned the gamut in the asylum law field: Immigration attorney, clinical professor, Immigration Judge, Supervisory Asylum Officer, Refugee Officer. His book, styled a “legal memoir,” discusses his time as an advocate and adjudicator and gives an insider’s perspective on our nation’s very dysfunctional immigration system.
While this book is generally targeted at people in the profession, law students, and policy-makers, it would also be useful for asylum seekers themselves. In many respects, Immigration Judges, DHS attorneys (the “prosecutors” in Immigration Court), and Asylum Officers are an inscrutable bunch. What are they thinking about when they interact with applicants and make decisions? How do they relate to each other? What are their outside interests? Judge Grussendorf’s book shines a light on the world behind the façade, and somehow, seeing government adjudicators as human beings is comforting.
That said, the overall picture painted by Judge Grussendorf ain’t pretty. He lays bare an immigration system that is a mess, where many prosecutors are unyielding and out of control, families are ripped apart for no logical reason (other than arbitrary laws that require it), politicians intervene to deny due process and treat immigrants as tools in a partisan game, and where training for judges and DHS attorneys is completely inadequate. The Judge has particular scorn for those DHS attorneys who do not know the law or care about “doing justice,” but who instead simply seek to deport anyone who comes into their crosshairs.
One aspect of the book that held particular interest for me was Judge Grussendorf’s discussions of cases he denied when he was on the bench. Such cases help illustrate how most deportations do nothing to make our country safer or better. Instead, they result in families being separated and good, hard-working people being ripped from their homes. Our harsh and unforgiving immigration laws often prevent judges–including well-meaning judges like the author–from granting relief even when that is clearly the better outcome. Other times, the applicant simply does not qualify for relief. In such cases, Judge Grussendorf did as most judges do: He denied the case and went on with his daily business. On reflection, it is striking that a judge can order someone deported in the afternoon and then go for a pleasant jog in the evening, but that’s the job, and good Immigration Judges can separate their job from their life.
The new edition of My Trials is timely, in that it has come out when Joe Biden is (hopefully) about to take office. While the Democratic Platform laid out a bold agenda, it is unclear whether a President Biden would be able (given Congressional resistance) or willing (given Mr. Biden’s more cautious nature) to pursue that agenda. Judge Grussendorf weighs in with a number of his own ideas for reform–some will require Congressional action; others will not.
A page from My Trials, chosen completely at random.
One of his proposals that I found interesting was the idea of granting Mexico some type of most favored nation status and essentially legalizing all Mexicans in the United States (except for those with criminal issues). Given that so many Mexican nationals are currently in the Immigration Court system, if this group were legalized, it would go a long way toward relieving the overburdened courts.
Judge Grussendorf also proposes removing asylum cases from the court system and delegating them to “Special Hearing Officers,” which are essentially better trained and better paid Asylum Officers. This would allow asylum cases to be adjudicated in a non-adversarial manner while freeing up the Immigration Courts to deal with other types of removal cases and eliminating the current redundant situation where the same asylum case is heard by both an Asylum Officer and an Immigration Judge.
A final proposal that I’ll mention here is the Judge’s idea to greatly reduce the use of pre-trial detention in immigration cases. This proposal is not unique to Judge Grussendorf. However, his real-world experience adds weight to arguments that the practice is dramatically over-used and illogical, and helps illustrate how devastating incarceration is for the non-citizen and the non-citizen’s family (and on the non-citizen’s ability to prepare for his Immigration Court hearing).
I hope that Judge Grussendorf’s book–and particularly his policy proposals–get some attention as we try to reform our immigration system. It seems like too often in this debate we hear from policy advocates and politicians, but not from people who have worked in the trenches. We need voices like Judge Grussendorf’s as we hopefully enter an era where immigration reform is a possibility.
My Trials sheds needed light on the absurd, cruel, dysfunctional, and unfair American asylum system. We are left with the impression that despite the systematic failures, justice in asylum cases is sometimes accomplished. When that happens, it is because individuals working within the system allow their humanity, decency, and respect for the rule of law to shine through and overcome the institutional barriers designed to prevent qualified applicants from receiving the protection they need and deserve. Judge Grussendorf is to be commended for his book, and for his effort to improve our nation’s asylum system.
In order to win an asylum case, you have to prove that there is a reasonably possibility you will face harm in your home country. To do this, you need evidence. Evidence about any past harm, evidence of threats against you, evidence of country conditions, etc. One piece of evidence that can be helpful is a report from an expert witness. Here, we’ll discuss the different types of expert reports and how they can help your case.
First, let’s briefly examine the difference between a fact witness and an expert witness. A fact witness is someone who knows about some aspect of your case. For example, maybe your cousin saw the police arrest you from a political rally. Your cousin knows about one piece of your story, and she can write a letter explaining what she knows. She is a fact witness. An expert witness usually does not have any first-hand knowledge of your case. Rather, according to the Federal Rules of Evidence, an expert is someone with “with scientific, technical, or other specialized knowledge” who can “assist the trier of fact to understand the evidence or to determine a fact in issue.” For example, if you are a member of a small ethnic group that is persecuted by your home government, you might find a professor who has studied your group and who can write a report explaining how the government treats members of your ethnic group. The professor is an expert witness.
In terms of admitting expert testimony, the Federal Rules of Evidence are not binding in Immigration Court or at the Asylum Office, but they do provide useful guidance. To be admissible under the Federal Rules, expert testimony must meet three criteria: (1) It must be relevant, meaning it will “assist the trier of fact to understand the evidence or to determine a fact in issue;” (2) The expert witness must be “qualified as an expert by knowledge, skill, experience, training, or education;” and (3) The expert’s testimony must be reliable, in that it “is based upon sufficient facts or data… is the product of reliable principles and methods, and [the expert] witness has applied the principles and methods reliably to the facts of the case.” The standard for admitting evidence in immigration proceedings is more liberal: The “sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.” Nevertheless, by following the guidance from the Federal Rules, you can help ensure that any expert testimony is given maximum credence by the fact finder.
The standard uniform for an expert witness.
Expert testimony is usually submitted in writing, in the form of an expert report. Accompanying the report is the expert’s CV or a statement of qualifications. It is also helpful to list instances where the expert has previously been recognized as an expert witness by other courts. Experts witnesses sometimes come to court to testify (or testify by telephone).
Expert testimony can be used to support different aspects of an asylum claim. Probably the most common expert report we use is a forensic medical or dental exam. In these reports, the doctor or dentist examines an asylum applicant’s injury to determine whether that injury is consistent with the applicant’s description of what happened. For example, we once had a client who was stabbed in the arm by members of the Taliban. He had a large scar running the length of his forearm. Of course, no medical expert can determine whether the injury was caused by the Taliban. But the expert can opine about whether the scar is consistent with a knife wound. Some experts can also discuss the approximate age of a scar based on its appearance. To create a report, the client would normally need to appear for an in-person examination and give a written description of the incident to the doctor. For this reason, we try to complete the client’s affidavit (or at least the relevant portion of the affidavit) before he goes to see the doctor. That way, he has a description of the incident to bring with him to the exam.
A subset of the forensic medical exams is an evaluation of female genital mutilation/cutting (“FGM/C”). Victims of FGM/C are often able to obtain asylum, and such exams are crucial to these cases. The World Health Organization has categorized FGM/C, and it is helpful for the doctor to explain what category the client’s FGM/C fits into.
Another common type of report that we see are mental health evaluations. These are created by psychologists or other mental health professionals to evaluate the psychological harm (such as post traumatic stress disorder) caused by persecution or the threat of persecution. Sometimes, these reports are generated during the course of treatment; other times, the client visits the mental health professional one or two times and obtains an evaluation for purposes of the asylum case. I tend to prefer the reports created by a treating professional, but in many cases, asylum applicants do not have access to health insurance and cannot afford treatment. In such cases, it may be possible to obtain a pro bono evaluation, which the client can use to bolster her asylum claim. We also use these reports to try to expedite asylum cases. For example, if the report indicates that the applicant’s mental health is being harmed by the long wait, we can sometimes convince the Asylum Office or the court to expedite the person’s case.
Country condition experts can also assist with asylum cases. In my own practice, I use such experts only rarely, as most of the information we need can be found on-line in human rights reports or news articles. However, in specialized situations, a country condition expert can be critical. For instance, an expert can help establish that a person belongs to a particular social group by showing that the society in question recognizes that social group as a distinct entity. Another example is where an expert is needed to interpret a foreign law, such as whether an adoption is legally valid.
In short, there are many ways that experts can help bolster an asylum case. A good starting point for identifying experts and utilizing them effectively is the asylum expert handbook created by Professor Deborah M. Weissman and her students at UNC Chapel Hill Law School. Other helpful resources include the expert data base at the Center for Gender & Refugee Studies at UC Hastings Law School and the country condition expert list from the Rights in Exile Programme. Some experts on these lists work pro bono; others charge a fee.
Not all asylum cases need testimony from an expert witness (indeed, most of my own cases do not), but where it is needed, it can make the difference between a denial and a grant.
Last week, USCIS announced a new rule for interpreters at Asylum Office interviews. Starting immediately, most asylum applicants should not bring their own interpreter to the interview, as had been the practice up until now. Instead, USCIS will provide an interpreter by telephone for most languages. The reason for the change is, of course, the coronavirus pandemic. This new rule will be in effect until at least March 22, 2021.
There are a few interesting tidbits contained in the rule’s preface, and here, I want to discuss those, as well as the effect of the new rule, plus some tips on working with telephonic interpreters.
One tidbit is statistical. To justify the new rule, USCIS cites some numbers indicating how serious the pandemic is. As of July 31, 2020, “there were approximately 17,106,007 cases of COVID-19 globally, resulting in approximately 668,910 deaths; approximately 4,405,932 cases have been identified in the United States, with new cases being reported daily, and approximately 150,283 reported deaths due to the disease.” This grim assessment by the U.S. government itself seems largely at odds with the picture painted by President Trump, who has pretty consistently underplayed the severity of the pandemic (at least in public, if not to Bob Woodward).
When using a telephonic interpreter, be sure to speak loudly into the phone.
Another interesting tidbit relates to the affirmative asylum backlog. Since the advent of the Trump Administration, the Asylum Office has become more tight lipped about its data, and so we receive fewer updates about the backlog (or anything else). But according to the new rule, as of “July 31, 2020, USCIS had 370,948 asylum applications, on behalf of 589,187 aliens, pending final adjudication.” “Over 94% of these pending applications are awaiting an interview by an asylum officer.” This means that as of July 31, the current affirmative asylum backlog was about 348,691 cases (meaning 348,691 cases were filed but not yet interviewed). Contrast this with the last time USCIS posted statistical information about asylum cases, which was for the period ending on September 30, 2019. At that time, the backlog stood at 339,836 cases. If all this data is correct (and I am never completely confident in the information we receive from USCIS these days), the backlog has grown by about 9,000 cases between October 1, 2019 and July 31, 2020.
If we believe these numbers, this means that the backlog grew faster in FY2019 than it did in FY2020. This may or may not be surprising, depending on your perspective. On the one hand, given that so few cases are being interviewed this year thanks to the pandemic, we might have expected the backlog to have grown more quickly. On the other hand, given that fewer asylum seekers are making it to the U.S., we might have expected the backlog to grow more slowly.
Finally, with regard to statistics, USCIS’s numbers indicate that 22,257 cases have been interviewed and are awaiting a decision. This seems like a lot to me, especially since Asylum Officers are interviewing fewer people because of the pandemic, and you’d think they’d have more time to finish cases that have already been interviewed.
Turning to the new rule itself, basically it means that when you go to an asylum interview, the government will provide you with a contract interpreter, who will attend the interview by phone. According to the new rule, “contract interpreters are carefully vetted and tested [and they] pass rigorous background checks as well as meet a high standard of competency.” In my experience, the contract interpreters are quite good, and I have never had a case where an interpreter caused a major problem. Prior to the new rule (and the coronavirus), applicants were required to bring their own interpreter, who assisted in person, while the contract interpreter monitored the interview by phone. Now, you are not allowed to bring your own interpreter, and you must use the telephonic interpreter.
Not all languages are covered by the new rule, but many are. USCIS contract interpreters are available for 47 languages. If your language is not on the list, you must bring your own interpreter.
If a contract interpreter is not available, the interview will be rescheduled and the delay will be attributed to USCIS for Employment Authorization Document (“EAD”) purposes (meaning that the Asylum Clock will not stop). On the flip side, if the applicant refuses to proceed with a USCIS contract interpreter, the Clock will stop, which will delay the EAD.
The new rule raises a few concerns. Probably the primary concern is whether asylum applicants will be comfortable with their interpreters. Will a woman who has been the victim of gender-based violence be comfortable if her interpreter is a man? I have heard anecdotally (and I believe it) that Asylum Officers are sensitive to this issue, and will check with the applicant before starting the interview. Also, if you prefer a male or female interpreter, you might ask in advance by emailing the Asylum Office before your interview. My sense is that the Asylum Office will do its best to accommodate such requests.
Another concern is that telephonic interpreters cannot as easily understand the applicant (or the Asylum Officer) and may not be able to convey emotion or nuance as well as they might if they were present in person. While I suspect that this is true, I think it is unlikely that missing such subtleties will make a difference in the outcome. Also, given the pandemic and the need for social distancing, it seems to me that we all need to make some adjustments.
All that said, how can you best work with a telephonic interpreter? Here are a few tips from a star interpreter, who has herself performed telephonic interpretations–
Keep your voice loud and clear. While this is important when working with on-site interpreters, it is even more important over the phone.
If you have a long statement, pause after a sentence or two so the interpreter can translate your words. After the interpreter is done, continue your response.
Don’t shuffle papers as you speak; you might as well stop talking because the interpreter will not be able to hear you.
Try not to talk over other people. The interpreter can only translate for one person at a time. Over the phone, it will be impossible for the interpreter to understand what is being said if people talk over each other. This could result in a statement by the applicant going unheard by the Asylum Officer–with potentially disastrous consequences.
Wait for the interpreter to finish interpreting before making another statement or asking a question.
If you don’t hear or can’t understand the interpreter, speak up!
All good advice to keep in mind at your interview.
Overall, my sense is that this new rule is reasonable and will hopefully allow more applicants to start attending interviews, while keeping everyone as safe as possible.
Tip o’ the fedora to Professor Lindsay M. Harris, Director of the Immigration & Human Rights Clinic at the University of the District of Columbia, and interpreter extraordinaire Maria Raquel McFadden, for their contributions to this article.
As you might have noticed, USCIS offices have been closed for all in-person appointments–including asylum interviews and biometric appointments–since March 18, 2020. Now, USCIS has announced that it “is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4.” What does this mean? What will the “new normal” look like at USCIS? Are we all going to die?
The first thing I notice about the USCIS announcement is that it is kind-of vague. “Some domestic offices” will reopen? I am not sure what this means. I suppose we will have to wait and see which offices actually reopen. Also, “on or after June 4” could be next week or it could be in 2099. In any event, it seems clear that USCIS is trying to get things moving again. Indeed, one of my clients is scheduled for an interview on June 29 in the Arlington Asylum Office and I have heard of other applicants receiving notices for interviews there as well.
An Asylum Division manager explains how they will reopen their offices.
Second, it seems that the new interview process will be a bit different than what we are used to–
In accordance with social distancing guidelines, and due to the length of asylum interviews, asylum offices expect to conduct video-facilitated asylum interviews, where the applicants sit in one room and the interviewing officer sits in another room. Asylum offices will use available technology, including mobile devices provided by the agency, to ensure that the officer, applicant, interpreter and representative can fully and safely participate in the interview while maintaining social distancing.
This short description raises a few concerns related to (1) safety, (2) due process, and (3) security. In terms of safety, if the Asylum Officer is in his own room, that seems relatively safe, at least for the officer (though the officers still need to get to work and stay healthy in an environment with many coworkers). For the applicants, the situation is less clear. Presumably, they will have to wait in a waiting room. In normal times, we often spend considerable time waiting, as interviews are often delayed–sometimes for hours. I suppose applicants could be sent outside (to wander aimlessly?) and then contacted by phone when the officer is ready to see them. This would at least avoid overcrowding in the waiting area. Also, normally, asylum applicants have their fingerprints and photo taken when they check in to the interview. This often entails waiting in line while a staff member struggles with a fussy computer. Whether the offices have sufficient space to “social distance” while waiting to check in, I do not know.
During the interview, applicants are entitled to bring an interpreter and a lawyer. Will all those people share a room? No offense to my clients, but this is not very comforting. Will each of us have our own room? That seems to be the plan, at least in Virginia. Due to security concerns, Asylum Officers never left us unattended during interviews, even for a second, and so I am guessing that they will need empty rooms to put us into. But the rooms won’t be completely empty, since we will need video equipment (and hopefully chairs), and so I am not sure how that will work. Also, what stops us from leaving the room and wandering the halls of the Asylum Office (I myself might go in search of the mythical room where all my lost files are located). And where are they going to get all those empty rooms? My guess is that the “new normal” will involve far fewer interviews than the old normal, but I suppose the powers-that-be figure some interviews are better than none.
Another concern is due process. Asylum seekers are entitled to a fair procedure. I know from my experience in Immigration Court that video hearings are more difficult and less fair than in-person hearings, and I imagine the same will be true of asylum interviews. There is much that is easier in person. For example, at the beginning of the interview, the officer reviews the I-589 form and makes corrections. Sometimes, the officer wants to look at documents with the applicant. These things will be difficult to do if the officer and the applicant are in two different places. Also, if the lawyer, interpreter, and applicant are in different rooms, communication between them will be more challenging. Aside from this, it is simply more difficult to talk to a person by video (as we all now know from innumerable, interminable Zoom chats). This difficulty will be compounded if the applicant is wearing a mask, which may be necessary in the event she shares a room with her attorney or interpreter. All these protective measures will make it more difficult to interact with the Asylum Officer and will make an already stressful situation worse. In short, under the current circumstances, there will be significant barriers to receiving a fair adjudication.
An additional concern is security. Will the video equipment be secure, or might it be hacked by nefarious actors who want to harm asylum seekers? I do not know, but the federal government’s track record here is mixed, and for people seeking asylum, confidentiality is an important concern.
How does USCIS plan to keep asylum applicants safe? The agency has issued the following guidelines for entering USCIS facilities–
Visitors may not enter a USCIS facility if they:
Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
Hand sanitizer will be provided for visitors at entry points.
Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities. Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph. There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
Individuals are encouraged to bring their own black or blue ink pens.
My local office (Arlington) announced that telephonic appearances are not permitted for applicants because the Asylum Office must check identification. Also, the Asylum Office does not have any procedures for attorneys to appear telephonically (strange, since they do have telephones). All documents must be submit at least 72 hours before the interview, as there is apparently a new policy that requires 72 hours to pass before anyone can touch incoming mail. Finally, the Asylum Office will have a “very liberal” rescheduling policy, and so applicants can reschedule by email. Whether these same changes will apply at other offices, I do not know, but I imagine that all offices will follow similar procedures.
Like every other organization trying to reopen, USCIS is engaged in a difficult balancing act. How can they fulfill their mission and keep people safe? In my opinion, at the moment, they cannot do both. Given all the restrictions and contortions needed to make interviews happen, I expect they will only be able to interview a token few applicants. Under those circumstances, I do not see how it is worthwhile to endanger their staff and clientele (and anyone who comes into contact with them).
On the other hand, I know that many asylum seekers would be willing to take the risk. Not because they are reckless, but because they are so desperate to have their cases resolved and to reunite with family members. I can’t blame them for this.
There is no easy resolution to the dilemma. I hope USCIS will move cautiously, and I hope they will be able to keep people safe and provide them with fair interviews. We shall see.
Have an asylum case in Immigration Court and wondering what to do while the courts are closed? My friend David L. Cleveland has a suggestion: Get a copy of your file from the Asylum Office. David is a lawyer in Washington, DC. He has secured asylum or withholding for people from 48 countries. He can be reached at 1949.david@gmail.com.
In most cases, when an asylum applicant has their case denied at the Asylum Office, the case is referred to Immigration Court. There, Immigration Judges sometimes deny asylum because the applicant is deemed incredible. The applicant has told the Asylum Officer one thing, but then tells the Judge something different. There are many examples of Judges being annoyed by inconsistent asylum applicants–
In a New York case, the applicant was inconsistent concerning the location of children and where she was raped. Kalala v. Barr, 2020 U.S. App. LEXIS 8320 (2nd Cir. 2020).
in a California case, the applicant was inconsistent concerning the name of a police station. In this case, the Asylum Officer’s notes were shown to applicant for the first time during the Individual Hearing. Sun v. Barr, 2020 U.S. App. LEXIS 5397 (9th Cir. 2020).
In an Ohio case, the applicant testified to being beaten inside a church. When she asked about how many members of the church were present at the time, she first said 15. Later, she testified that six church members were present. Onoori v. Barr, 2019 U.S. App. LEXIS 21310 (6th Cir. 2019).
Now that he has a copy of his client’s file, David Cleveland is finally able to relax.
More generally, Immigration Judges are very interested in what Asylum Officers do and write. In a case decided in 2019, the phrase “Asylum Officer” is used 32 times. Qiu v. Barr, 944 F.3d 837 (9th Cir. 2019). In a 2018 case, the phrase “Asylum Officer” is mentioned 57 times, and “notes” (referring to the Officer’s notes from the asylum interview) was mentioned several times. Dai v. Sessions, 884 F.3d 858 (9th Cir. 2018). In another case, from 2014, an Asylum Officer named “Kuriakose” is mentioned 15 times. Li v. Holder, 745 F.3d 336 (8th Cir. 2014).
In these cases, asylum applicant’s were deemed not credible because their Court testimony was inconsistent with their testimony at the Asylum Office. Most likely, the applicants did not have a record of what they told the Asylum Officer, and of course, since years pass between an asylum interview and an Individual Hearing, it is difficult to remember what transpired at the Asylum Office.
How can I prevent surprise in Immigration Court?
When an Asylum Officer interviews an applicant, the Officer takes detailed notes. Often, these run to 10 pages or more. Later, in consultation with his supervisor, the Officer writes an “Assessment to Refer” or an “Assessment to Grant.” This document is usually three or four pages long. If the case is referred to Court, these notes do not go to the Immigration Judge. However, they are sent to the DHS attorney (the prosecutor), who can review them and look for inconsistencies. At the Individual Hearing, the DHS attorney can use the notes to impeach an applicant’s credibility (“At the asylum interview, you testified that there were 15 people present in the church when you were beaten, but now you say there were only six. Were you lying then, or are you lying now?”).
Asylum Officers sometimes make mistakes or include unexpected information in their notes. They find some sources of information important and ignore other sources. In short, there is a subjective element to these notes that can sometimes work against the applicant and cause surprises in Immigration Court. And, as any attorney will tell you, surprises in Court are usually bad news.
To avoid a surprise in Court, and to find out what the officer wrote, the advocate should make a Freedom of Information Act (“FOIA”) request for the notes and the Assessment. Asylum Officer notes are easily available via FOIA. To obtain this information, type your request on a single piece of paper: “Give me the notes and assessment of the asylum officer.” State your name, date of birth, place of birth, address, Alien number, and sign under penalty of perjury. You do not need a lawyer; you do not need Form G-639, although you are allowed to use that form. Send your request via email to: uscis.foia@uscis.dhs.gov
In January 2020, I received the entire Asylum Officer assessment for an asylum applicant from Congo. The client and I are now more relaxed and confident about the case. We will not be surprised in Immigration Court. You can read this assessment at the FOIA page of the Louise Trauma Center. A model FOIA request can also be found at the same page.
Last fall, the Asylum Division cancelled its quarterly stakeholder engagement meeting and postponed the release of data about the various Asylum Offices. Now, finally, that information has been released. The news is generally bad (who would have guessed?), but the data contains some bright spots and surprises–as well as a few mysteries. Here, we’ll take a look at the most recent news from our nation’s Asylum Offices.
First, the data. The Asylum Division has released statistics for FY2019, which ended on September 30, 2019. The data shows that despite the Trump Administration’s hostility towards asylum seekers, many people continue to seek protection in the United States–through the fiscal year, a total of 82,807 new affirmative asylum applications were filed (and remember that some of these cases include dependents, so I imagine the total number of people filing for asylum in FY2019 is well over 100,000). Case completions are still not keeping up with new filings, and the overall asylum backlog continues to grow: From 323,389 at the beginning of the fiscal year, to 339,836 at the end. Throughout the year, the number one source country for new asylum cases was Venezuela. China was number two for most of the year, followed by Guatemala, Honduras, El Salvador, and Mexico.
In terms of grant rates, the news is fairly negative, but not uniformly so. As an arbitrary base-line, I will use a post I did in February 2016 about Asylum Office data from the second half of FY2015 (April to September 2015). I calculated the percentage of cases granted at each Asylum Office. In crunching the numbers, I discounted cases that were denied because the applicant failed to appear for an interview, but I included cases that were denied solely because the applicant failed to meet the one-year asylum filing deadline. I’ve made the same calculations for the period April to September 2019, and compared the grant rates for both time periods in the chart below.
Whenever a lawyer does math: Beware!
As I mentioned, I did not include “no shows” in my data. For this reason, government statistics about the asylum grant rate will be lower than my numbers, since they include people who failed to appear for their interviews. If I had included “no-shows,” the FY2019 grant rate in Arlington would be only 19.5% (instead of 26.5%, as shown in the chart). The New York grant rate would drop to a paltry 7.1%, and the grant rate in San Francisco–the “best” asylum office–would fall to a still-respectable 54.0%. Arguably, it makes sense to include “no shows,” since some people may not appear due to no fault of their own. However, I chose to leave them out, since I suspect most have either found other relief or have left the country, and I don’t think it is useful to evaluate Asylum Offices based on denials where the applicant never appeared for an interview.
One problem with my comparison is that there are more asylum offices today than there were in 2015. The two new offices are Boston and New Orleans. The Boston office was previously a sub-office of Newark, and the New Orleans office was part of the Houston office (though in truth, I am not sure whether all of New Orleans’s jurisdiction was covered by Houston, or whether some was covered by Arlington). To account for this, the first numbers listed for Houston and Newark for FY2019 is the percentage of cases granted in that office. The numbers in parenthesis for Houston and Newark include cases that would have been within the jurisdictions of those offices in FY2015 (i.e., the New Orleans cases are included with Houston and the Boston cases with Newark). Thus, the parentheticals are useful only for comparison with the FY2015 numbers; if you are just interested in the percentage of cases granted in Houston and New Orleans in FY2019, look only at the first number.
The same chart, but here, I have removed one-year bar denials (reminder: Beware!!).
As you can see, there is an overall decline in the grant rate at most offices. In some cases, this decline is quite significant. One office–Houston–bucked the trend and actually granted a higher percentage of cases than in FY2015.
But perhaps things are not quite as bad as they appear. The numbers in the first chart include cases denied solely because the applicant failed to file asylum on time (remember that you are barred from asylum unless you file within one year of arriving in the U.S. or you meet an exception to that rule). In the second chart, I factored out cases that were denied solely because they were untimely (the Asylum Offices have been identifying late-filed cases and interviewing them; unless the applicant overcomes the one-year bar, the case is referred to Immigration Court without considering the merits of the asylum claim; since they are interviewing many such cases, this is pushing overall denial rates up). Comparing the two fiscal years in chart two, the decline in grant rates is much less severe. Indeed, three offices granted a higher percentage of timely-filed cases in FY2019 than in FY2015.
So what’s happening here? Why did grant rates generally decline? Why did some offices improve? What does all this mean for asylum seekers?
First of all, these numbers must be taken with a big grain of salt (and not just because I am an incompetent mathematician). A lot is going on at each Asylum Office. Different offices have different types of cases, including different source countries, greater or fewer numbers of unaccompanied alien children (“UAC”) cases, and different policies in terms of interviewing untimely applicants. As a result, some offices may be interviewing more “difficult” cases, while other offices are interviewing more “easy” cases. Offices that interview many Central American cases, or many UAC cases, for instance, will likely have lower grant rates than other offices. This is because Central American cases and UAC cases are more likely to be denied than many other types of asylum cases. Also, some offices are more aggressive than others in terms of identifying and interviewing untimely asylum cases. Offices that interview more late-filed cases will likely have a higher denial rate than offices that interview fewer late-filed cases.
Despite all this, it is fairly clear that the overall trend is negative. One obvious reason for this is a series of precedential cases and policy changes during the Trump Administration that have made it more difficult for certain asylum seekers, particularly victims of domestic violence and people who fear harm from Central American gangs. In addition–and I think this is probably less of a factor–the leadership at DHS and DOJ has repeatedly expressed hostility towards asylum seekers and encouraged the rank-and-file to identify and deny fraudulent applications.
Finally, as my colleague Victoria Slatton points out, it’s possible that the negative trend is worse than what the numbers above reflect. In FY2015, the Asylum Division gave priority to UAC cases. Since such cases are more likely to be denied, interviewing more of them may have pushed the overall grant rates down. In FY2019, UAC cases were not given priority, meaning that (probably) fewer UACs were interviewed. All things being equal, fewer UAC cases should mean a higher overall approval rate, but that is not what happened at most Asylum Offices. This may mean that more non-UAC cases are being denied today than in FY2015.
As you can see, there are a lot of moving parts, and a lot is going on behind these numbers. In one important sense, though, things have not changed much in the last four years. Strong cases still usually win; weak cases often fail. For asylum seekers (and their lawyers), we can only control so much of the process. Submitting a case that is well prepared, consistent, and supported by evidence will maximize your chances of success. And as the numbers above show, success is still possible even in these difficult times.
In an unexpected–but perhaps not surprising–move, the Asylum Division has canceled its Quarterly Engagement Meeting, which had been scheduled for November 14, 2019. This is the meeting where headquarters staff from the Asylum Division give updates and answer questions from stakeholders, such as non-profit organizations and lawyers like me.
Over the years, I’ve attended a number of these Engagement Meetings. They were helpful for several reasons. Most obviously, Asylum Division leaders answered written questions, which had to be submitted in advance, and also allowed us to ask questions and raise issues at the meetings themselves. The meetings provided an opportunity for us to meet Asylum Division leaders and for them to meet us. This type of human-to-human interaction is beneficial to both sides. We were able to see “the bureaucracy” and better understand their concerns, and they could directly hear from their constituents. As I see it, this type of communication and transparency is appropriate in any functioning democracy.
But now things have changed. And while it is disappointing that the Engagement Meeting has been canceled, it is not really surprising. The Trump Administration has been closing avenues of communication between government agencies and various stakeholders for some time. For example, EOIR–the Executive Office for Immigration Review–the office that oversees that nation’s Immigration Courts, has dramatically reduced the ability of its employees to communicate with people outside the agency. In my interview with the former Chief Immigration Judge, she notes that, “This change was touted as a way to streamline the Agency’s messaging system, but cutting off… communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.” EOIR is also refusing to release data about its operations–data that was routinely made public in the past, and which helped us better understand how the system was operating. In addition, EOIR, DHS, and the Asylum Division have all been blocking their employees from speaking publicly, even to law students and at professional conferences. All this is harmful to students and professionals, who benefit from contact with public servants, but it is detrimental to the agencies as well, since they cannot hear directly from the people they serve or explain themselves to the advocacy community. Worse, their ability to recruit talented employees is hampered if they cannot communicate directly with people outside the government.
A live view of the Asylum Division meeting not taking place.
So as you can see, the Asylum Division’s decision to cancel the Engagement Meeting fits a wider pattern, but there may be other reasons behind the cancellation as well. The most obvious is a recent change in leadership. The long-time Director of the Asylum Division, John Lafferty, who normally chaired the Engagement Meetings, was forced out a few months ago. I met Mr. Lafferty several times, and I had (and still have) a high opinion of him: He tried to follow the law in the face of the Trump Administration’s assault on due process. Some lawyers I know felt he bent too far towards accommodating the Administration’s policies, but I saw him walking a difficult line and doing his duty to his superiors and to the law. He managed to keep the Asylum Division operating (more or less) despite the Administration’s machinations against it. According to news reports, Mr. Lafferty’s removal has further damaged morale at his agency–
The reassignment of John Lafferty… has caused consternation and fear among asylum officers and other USCIS officials, who worry that the administration is dead set on pushing forward with policies that may not always be legal or adequately researched…. “This is shocking and distressing news for the civil servants in the Asylum Division,” said [an unnamed] USCIS official. “A very sad day where an incredibly sophisticated, highly dedicated, and ethical leader is being removed from an important position in the agency.”
The new Director of the Asylum Division is Andrew Davidson, the former deputy associate director for USCIS’s Fraud Detection and National Security Directorate, the department that leads the agency’s “efforts to combat fraud, detect national security and public safety threats, and maximize law enforcement and Intelligence Community partnerships.” It seems likely that the choice of Mr. Davidson reflects the Trump Administration’s view that asylum claims are largely fraudulent, and so we will have to see where the Asylum Division goes under his leadership.
As the new Director, Mr. Davidson is in a position to continue or cancel the practice of holding Quarterly Engagement Meetings. The fact that the November 14th meeting–which would have been the first of his tenure–has been canceled, does not bode well. But perhaps since he is new to his role, he was not yet ready to engage with stakeholders, and meetings will resume once he settles in. Perhaps.
I myself was looking forward to the Engagement Meeting because I was hoping to hear answers to questions I submitted about how each Asylum Office was addressing its backlog. Whether USCIS will ever provide answers to these questions, I do not know. I reached out to them after I learned that the meeting was canceled, but I have not yet received a response.
I certainly hope the Asylum Division will resume the practice of holding public meetings. Whatever your feelings about asylum seekers and the asylum system, when government agencies close off avenues of communication and hide behind bureaucracy, it is bad for our democracy. It also begs the question: If the Asylum Division is so intent on cutting communication with us, what is it that they are trying to hide?
So, you’ve decided to file for asylum. Let’s talk about what happens on your journey as an affirmative asylum seeker.
Once you mail in the I-589 form, you should receive a receipt in about three or four weeks (though lately, this has been taking longer). After that, you and any dependent family members will be scheduled for a biometric appointment, where the government will take your fingerprints and your photo. For the biometric appointment, each person should bring their appointment letter and a photo ID, usually a passport.
Next, you will have an interview. Some Asylum Offices are faster than others, so in some cases, you will only wait a few weeks or months for your interview; in other cases, you may wait years. If you do not receive an interview within about 90 days of filing, you can be pretty confident that your case is in the backlog. Currently, there are well over 300,000 cases in the affirmative asylum backlog, and most new cases seem to end up in the backlog.
A computer determines at random who will get an asylum interview.
Why does one applicant land in the backlog while another receives an interview relatively quickly? My understanding from talking to my local Asylum Office Director is that it is completely dependent on luck. It does not matter what country you come from, or how strong your case is. It does not matter whether or not you have a lawyer. The Asylum Office staff determines how many interview slots they have for a given day, and a computer randomly chooses which cases, from the pool of newly-filed LIFO cases, will be interviewed.
If you end up in the backlog, how long will you wait? No one knows. The government does not know. The people working at the Asylum Office do not know. And I certainly don’t know. The basic reason for the backlog is that there are too many asylum cases and too few Asylum Officers. The Asylum Division has been trying to “staff up” for some time, and they are having some success. As more Officers come online, we might see progress on the backlog. Also, as you may have heard, the Trump Administration is working overtime to block asylum seekers from coming to the U.S. If there are fewer asylum seekers, we could also see progress on the backlog. Despite all this effort, the backlog continues to grow.
If your case falls into the backlog, there are a few things you can do. You can try to expedite the case. This is not easy, and even people with a strong reason to expedite are often rejected. The best reasons to expedite are where the applicant has a health problem or there is family separation, especially if the family members are unsafe. Even if you do not have a strong reason to expedite, you can still try–once in a while, applicants get lucky. Also, some offices have a short list. This is usually a long list of people who have agreed to accept an interview on short notice if there happens to be an opening. Putting your name on the short list will not necessarily get you a faster interview, but it might. You can contact your local office to find out whether they have a short list. If you put your name on the short list, make sure that all the evidence is submitted, so you are ready to go in case you get called. Attempting to expedite or put your name on the short list will never make your case slower–either it will be faster or there will be no effect.
If you do not get an interview, or if you do get an interview and there is no decision, you may be eligible for an employment authorization document (“EAD”), which allows you to work legally in the United States. You cannot file for your EAD immediately. Instead, you have to wait 150 days after the I-589 form is received by the government (the “received” date is listed on your receipt). Do not file before the 150th day, or the EAD application could be rejected as filed too early. Also, if you cause a delay in your case (by missing a government appointment, for example), or if you have certain criminal convictions, you may be ineligible for the EAD. Check the EAD instructions for more information. If you do not have an EAD, you cannot work lawfully in the U.S. Even the receipt for the initial EAD does not allow you to work. People who work unlawfully are not precluded from receiving asylum, but unauthorized employment could block you from other immigration benefits. When you file for the EAD, you can request a Social Security card on the same form.
Once you have an EAD, it is valid for two years. You can renew an expiring EAD up to 180 days before the old card expires. When you receive your receipt to renew, your old EAD will be extended by 180 days. Renewals can take a while, so it is a good idea to file the renewal soon after you are eligible.
While your case is pending, you can apply for Advance Parole (“AP”), so you can travel outside the United States and return. USCIS does not always approve AP, and sometimes, they only grant it for a short period of time, but if you have it, it acts like a U.S. visa. You still need to use your passport to travel, and this can create issues for asylum seekers, especially those who fear harm from the same government that issued the passport. And of course, asylum seekers should not return to the country of feared persecution, as that could kaibosh your asylum case.
Also, while your case is pending, if you move, you need to file a form to change your address. Depending where you move, this could cause your case to be transferred to a different Asylum Office. If the case moves to a new office, it should not cause additional delay and should be treated as if it were originally filed in the new office.
What if you do get an interview, but there is no decision? The most common reason for post-interview delay is the security background check, but there could be other reasons as well. You can contact the Asylum Office directly to ask about the delay, or you can ask your Congressperson or Senator to do that for you. You can also seek assistance from the DHS Ombudsman’s office, which can sometimes help with delayed cases. None of these approaches seems very effective to me, but there is no harm in trying. If all else fails, you might consider a mandamus lawsuit. This is where you sue the Asylum Office and ask a federal judge to force them to issue a decision.
In the end, you will either be granted asylum, or your application will be rejected. If you are rejected, there are two choices: If you are no longer in lawful status in the U.S., you will be referred to an Immigration Judge, who will review your case and issue a new, independent decision. If you are still lawfully present in the U.S., you will receive a Notice of Intent to Deny, be given an opportunity to respond, and if the Asylum Office still cannot approve the case, they will issue a final denial. In that case, you are expected to leave the U.S. when your lawful period of stay ends, but you can re-file asylum (the process is different – check the I-589 instructions) or you can seek other ways to remain here.
So that is the affirmative asylum process in a nutshell. The system is a mess, and it is helpful to know that before you begin. Perhaps this knowledge will make the process a bit easier to endure.
If online reviews of Asylum Officer (“AO”) jobs are to be believed, our nation’s AOs are not doing well. They are overworked, fearful of losing their jobs, and unhappy with management.
Now, I know what you’re thinking – online reviews are not reliable. I agree. My feeling is that anyone who spends 20 minutes reviewing shampoo is not the type of person I want to take advice from–about shampoo or anything else. And so, it is important to take these reviews with a big grain of salt: They are written by anonymous people and we have no way of verifying their claims or knowing whether they have ulterior motives. Online reviews also tend to be written by people who are unhappy about something, and so I imagine that happy AOs are less likely to post a review than unhappy ones. Nevertheless, after looking at about a dozen detailed reviews online and checking with my inside source, I feel pretty confident that these reviews were posted by actual AOs and that they are generally reflective of the situation in our nation’s Asylum Offices.
The website with the AO reviews is called Glassdoor, which bills itself as “one of the world’s largest job and recruiting sites.” Apparently, the negative reviews caught the attention of management and caused a bit of a stir at the Asylum Office. You can see about a dozen AO job reviews here and one more here. Most of the reviews give the AO job one star out of five. The best review gives three stars and the average is 1.6 stars. By comparison, the Glassdoor page for USCIS gives jobs at the agency an overall rating of 3.3 (and this number would be higher if we could factor out AO reviews, which are included with all the other USCIS reviews).
A typical Asylum Officer, pictured here after submitting her resignation.
Glassdoor breaks down the reviews into Pros and Cons, and has a section for Advice to Management. Let’s start with some positives. The two most common Pros listed by AOs are health insurance/benefits and that you have the ability to help people. However, even many of the Pros are qualified positives. Here are some Pros from two different AOs–
The Asylum Division has some of the smartest, most dedicated employees. Asylum Officers are highly educated and they are by far some of the most competent people working in the federal government. Many Asylum Officers have taken demotions and pay cuts to work as an Asylum Officer. Also, the cooperation among the Asylum Officers is exemplary. Asylum Officers work very well with each other as they can relate to each other’s pain and suffering while trying to learn this job and keep up with unrealistic demands by management.
You may get an office to yourself, with all the paper clips and staplers all setup for you because whoever you are replacing left in a hurry. You get a first hand horrific glimpse into how tax dollars are wasted, and a lesson in labor law and union “representation”, due to the gross mismanagement and brutalizing egos of socially awkward and millennial minded supervisors and directors. you won’t have to rent horror movies anymore, because you’ll be living in one.
Yes, those are the Pros. The Cons include poor management, an overwhelming case load, high turnover, unrealistic expectations, and working extra hours without pay. Here are some quotes from AOs about the negative aspects of their job. Trigger Warning: These ain’t pretty–
The current White House Administration would love for you to not exist.
The time provided to do interviews, update systems, and write up cases [is] insufficient and forces Asylum Officers to engage in unpaid overtime. If you get a backlog of cases, you may be written up and I have [known] people to [be] fired for having a backlog…. The IT systems Asylum Officers use is 40 years old. This makes doing the job very hard.
The workload is extremely unrealistic. You are expected to read your cases, conduct security checks, prep paperwork, call interpreters, interview 4 people, document miscellaneous items, and then write up your decisions in an 8 hr. day.
Too many [Cons] to list. All around awful experience. This place will be a stain on your professional record.
If we were to use one word to describe the Asylum Division’s conduct toward its employees it would be: abusive. The new PPA [performance evaluation] added another layer to this conduct. The Asylum program’s number one management tool in dealing with Asylum Officers is distilling fear; fear of not interviewing fast enough, fear of not writing up the cases fast enough, fear of not satisfying some of the supervisors, and most importantly, fear of the new PPA. Fear, fear, fear; almost nothing, but fear. So, if you want your career to be driven by meeting unrealistic expectations by fear, becoming an Asylum Officer would be the perfect choice for you.
If you already have experience in the field of immigration, this is CAREER SUICIDE. Supervisors (Who routinely have no experience in it) will resent you and make your life hell…. The supervisors are grossly incompetent, and will SET YOU UP to FAIL, and spend their time undermining your work, instead of actually helping to address the issue of THEIR failing procedures…. Supervisors and directors wholly operate with malicious intent and gross neglect in regards to the purpose of the agency, and are only concerned with getting a higher grade level and feathering their own nests. There is NO ACCOUNTABILITY whatsoever, from the supervisors, to the directors. The management at the asylum office ruins lives, and not just those of the applicants. OIG [Office of the Inspector General] needs to investigate management, bring charges and overhaul this agency.
Management is grossly incompetent, back-stabbing, insulting, treat you like kids in a summer camp and many are 2nd-tier law school graduates that couldn’t make it as a lawyer or even a government attorney for the family court, district court or any court…. You listen to stories of torture and persecution and unlike… any other government organizations, where time is built in to deal with 2nd-hand psychological trauma, you are told to “make sure you take care of yourself.” WITH WHAT TIME? … If you don’t churn out the number of cases that they want and keep in mind this is with the constant ramp-up, month after month[, you] will be terminated and your personal record will reflect that you were terminated. Do not take this job unless your rent is due, you have exhausted all your financial resources and you have no other government prospects. If you mis-step, you will NOT have a career in the government.
stunning incompetence and bad faith decisions at ALL levels of management, from the supervisors to the directors…. extremely low morale and toxic work environment.
Yikes. But there’s more. Here’s what some of the AOs had to say for Advice to Management–
If your department is turning over at 40% to 50% a year, it’s not that the work is too hard, it’s because you and those above you are lacking in the ability to establish a process with integrity, fairness and nurturance.
I have no advice. RAIO [Refugee, Asylum and International Operations] USCIS Management knows there is high turnover and does not care. They can simply hire more people. My advice is to the US Congress and GAO. You need to know what is going on in RAIO Asylum and make changes.
Lower the interview amount to 3 assigned cases a day, offer economic incentives to people who can do more in a day.
Adjust allotted times for interviewing and writing assessments.
How do you live with yourselves? Turn yourselves in before you make things even worse. You’re really, really bad at your jobs.
Advice to lawmakers: Someone should look into what is going on in the Asylum Division and stop the questionable labor practices.
Realize it’s not YOUR personal agency to make up the rules how you want. Seek therapy, get a life coach, and get a reality check: the younger officers who laugh at all your awkward jokes, and oblige your antics at forced weekly meetings where you give yourselves awards for a job well done (not making that up), don’t actually like you or agree with you at all. they are just afraid to lose their jobs. look into the actual work you are supposed to be supervising, don’t imitate the behaviors of the corrupt governments that the applicants are running from. morale is at an all time low, numbers are at an all time low, and you seem happy to make it worse. if you are getting a sense you are really bad at your job, move on to an agency or a do nothing federal position where you will do less harm.
Oy Vey. Again, we need to read the above comments skeptically, since dissatisfied people may be more likely to post negative reviews. Nevertheless, all this points to some real issues at the Asylum Offices.
As for solutions, there is no easy fix, particularly in the current environment, and I doubt we will see any improvement soon. The Director of the Asylum Division for the last six years was recently forced out. The new Acting Director was moved to his current position from the USCIS fraud detection section. How he will manage the agency’s problems, we shall see, but he faces a fundamental and perhaps unresolvable challenge: While the Administration wants to block all asylum seekers regardless of the law, the AOs themselves are sworn to follow the law. As long as management is pressuring AOs and their immediate supervisors to ignore the law, it is hard to imagine how working conditions will improve. And of course, all this affects asylum seekers in terms of worse decisions and longer delays.
The only hopeful note here is that AOs seem to be pushing back against the Administration’s worst excesses. But these only represents part of the problem, as issues at the Asylum Offices long pre-date Mr. Trump. Whether the bureaucracy can save us, I do not know, but as long as AOs continue to do their jobs and follow the law–even under difficult conditions–there is still hope for our nation’s asylum system.
Earlier this month, United States Citizenship and Immigration Service (“USCIS”) issued a news release touting its accomplishments for FY 2019, which ended on September 30, 2019 (a belated Happy FY 2020 to all!). According to the agency, “FY 2019 has been a historic year for USCIS and we have achieved many of President Trump’s goals to make our immigration system work better for America.” Here, we’ll take a look at some of USCIS’s “accomplishments” and explore what that means for asylum seekers.
First, I can’t help but note the hostility towards Congress and towards asylum seekers expressed in the news release and by Acting USCIS Director Ken Cuccinelli. Here are a couple quotes—
In the face of congressional inaction, we’ve taken significant steps to mitigate the loopholes in our asylum system, combat fraudulent claims and strengthen the protections we have in place to preserve humanitarian assistance for those truly in need of it.
Absent congressional action to provide targeted fixes to our immigration system, USCIS rushed personnel and resources to our southern border and implemented a number of significant policy changes and reforms designed to help reduce the loopholes in our nation’s asylum system that allowed for crisis levels of abuse and exploitation.
USCIS is correct that Congress has failed to pass comprehensive (or partial) immigration reform, which has been sorely needed for years. However, to blame only Congress, without considering the erratic leadership (or lack thereof) from the Executive Branch looks like a case of the pot calling the kettle black. Also, USCIS again points to “loopholes” and “crisis levels of abuse and exploitation” without specifying what that means. Clearly, the Acting Director wants to deter asylum seekers from coming here, but that is a separate question from whether asylum seekers themselves are exploiting loopholes or abusing the system.
In anticipation of more e-filing, USCIS has added extra hard drives to its computer.
USCIS points to two major policy reforms for FY 2019. The first is the Migrant Protection Protocols (“MPP”), which were designed to stop asylum seekers from “attempting to game the immigration system.” Again, evidence that anyone is “gaming the system” is lacking. “Under MPP, aliens attempting to enter the U.S. from Mexico without proper documentation may be returned to Mexico to wait outside of the U.S. during their immigration proceedings.” Sadly, the MPP has done real damage to our asylum system and to our nation’s moral standing. The program has forced thousands of people to wait in tents in Mexico, where they are subject to violence and extortion at the hands of cartels, which have a powerful presence near the border. Also under the MPP, asylum seekers are routinely and blatantly denied due process of law.
The other major policy reform is the Third Country Transit Asylum Rule, which is designed to–
enhance the integrity of the asylum process by placing further restrictions or limitations on eligibility for aliens who seek asylum in the United States. Specifically, with limited exceptions, the rule bars aliens, who entered along the southern border, from receiving asylum in the U.S. if they did not apply for asylum in at least one other country they transited through. This rule aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.
Like the MPP, this rule degrades (and arguably violates) our asylum system by forcing asylum seekers who arrive at the Southern border to file for asylum in a country that they pass through on the way to the U.S. This might be fine if the countries in question were safe and had operating asylum systems of their own, but for the most part, they aren’t and they don’t. What I find most offensive about this pronouncement, though, is the last part–the claim that the policy “aims to mitigate the crisis at the border by better identifying and serving legitimate asylum seekers.” It does no such thing. Instead, the rule arbitrary seeks to block all asylum seekers by forcing them to seek protection in third countries. There is no effort to distinguish legitimate asylum seekers from those who are somehow not legitimate (whatever that means). Why USCIS can’t simply say this, and be honest about their goal of making asylum more difficult for everyone, I do not know.
The news release also gives us some statistics. “In FY 2019, the Asylum Division received more than 105,000 credible fear cases – over 5,000 more than in FY 2018 and a new record high.” A credible fear interview or CFI is an initial evaluation of asylum eligibility. People who arrive at a border or an airport and request asylum receive a CFI. If they “pass,” they are referred to an Immigration Judge for a full asylum hearing. If they “fail,” they are removed from the U.S. The fact that USCIS performed a record number of CFIs signals that the government’s deterrent efforts are not working. If people were being deterred from coming to the U.S. for asylum, we should see lower numbers of CFIs.
Another statistic relates to hiring–
In FY 2019, USCIS executed an ambitious plan to hire 500 staff for the Asylum Division by the end of December 2019 to reach authorized staffing levels. New strategies are in development to more specifically target individuals with relevant experience and skill sets, including those with prior military and law enforcement expertise.
The Asylum Division has been “staffing up” for probably half a dozen years, and whether they expect to actually achieve their goal this time, they do not say. If so, this could help reduce the asylum backlog, which would be good news. On the other hand, the idea that they are recruiting people with “law enforcement expertise” rather than human rights experience, points to the type of candidate they may be seeking.
Also in FY 2019, the “Asylum Division trained and deployed U.S. Border Patrol agents and USCIS officers from outside the Asylum Division to supplement staffing on the southern border and assist with the Asylum Division’s workload.” Whether Border Patrol agents and USCIS officers have the training necessary to properly do Asylum Division work is an open question, and is an issue of concern for advocates. I personally have my doubts. But on the positive side, I suppose it will free up “real” Asylum Officers to do more affirmative cases.
Finally, the news release discusses some plans for FY 2020. One point of interest for asylum seekers is that USCIS plans to continue the transition to on-line filing, and will make it possible to e-file the I-589 asylum form. If done properly, this would be a great benefit to asylum seekers, since it would make filing easier and more reliable, and would hopefully avoid the problem of USCIS losing documents, which has been a big issue in the past. Given all the bad news from USCIS, let’s end here, with happy thoughts of e-filing in FY 2020.
