In November 2012, we received a “recommended approval” from the Asylum Office for one of my Afghan clients–we’ll call him Dave, though as you might guess, that is not his real name.

We were pleased with the news. Dave had worked for the United Nations and as a contractor for USAID- and NATO-funded agencies in Afghanistan. The Taliban became aware of his work and threatened him. They contacted him by phone. They said he was an infidel and an American spy. They told him, “We are watching you. We know everything about you and your family. We know where you are.” A bearded stranger approached his children after school and tried to lure them away from their classmates. The threats escalated and so Dave decided to seek asylum in the U.S.

Dave had a United States visa, but his wife and children did not, so he came alone, in the hope that this would end the threats and that his family members could follow him later.

In those days–before the asylum backlog–cases moved more quickly. We filed the case in September 2012. Dave was interviewed the next month and received his recommended approval in November. So far, so good (but as Megadeth might say, “so what?”).

But what does it mean, this “recommended approval?” A person receives a recommended approval if the Asylum Office has determined that she is eligible for asylum, but for some reason the decision cannot yet be issued. The Asylum Office generally won’t give the reason why they cannot issue the decision, but in most cases, it seems to be because the security background check is not complete.

So what is the “security background check,” you ask. Every asylum applicant has their biometric and biographic data checked against several government data bases to determine if they might be terrorists or criminals. While these checks never seem to cause delay in Immigration Court cases (defensive asylum cases), they can take a long time for Asylum Office cases (affirmative asylum cases). Why is that? I don’t know. I asked once at a USCIS meeting, and they said it was because there are different checks at the Court and at the Asylum Office. I’ve never found anyone who could explain why the two agencies (DOJ and DHS) use different background checks, and because security issues are hush-hush, I doubt I’ll ever get a good answer on this point.

So Dave’s case was delayed while we waited for the final approval. In those pre-backlog days, the one benefit of a recommended approval was that the applicant could immediately apply for an EAD–an employment authorization document. In general, if an asylum applicant does not have a decision within 150 days of filing, he can apply for an EAD. With the current backlog, nobody gets a decision in 150 days and so everyone applies for the EAD. Prior to the backlog, many people received decisions in less than five months; others–like Dave–received a recommended approval in less than 150 days. Such people could immediately apply for the EAD. Dave applied for his EAD.

For asylum applicants with a recommended approval, the worst part about waiting is the uncertainty. When will the Asylum Office issue the final approval? Might something change so that the case is denied? For people separated from family members, the uncertainty and loneliness is extremely stressful.

As the months passed, our initial happiness with Dave’s recommended approval began to fade. When would the final decision come? I periodically made inquiries to the Asylum Office. We never received a substantive reply.

Then Dave’s wife got sick. He was worried about her, and worried about his children, but he decided to stay in the U.S. and hopefully get a decision soon. More time passed.

A year after we received the recommended approval, one of Dave’s children became seriously ill. We notified the Asylum Office and again requested a decision. We got no response. But Dave continued to wait and hope that he would receive his final approval so he could bring his family to safety.

The days and weeks and months continued to pass. Finally, as we reached the two-year anniversary of Dave’s recommended approval, he called me and told me that he had decided to return to Afghanistan. His children were suffering from health issues and he had not seen them (except via Skype) for more than two years. He was giving up on his asylum case and returning to his family, and to the danger.

So what can we learn from Dave’s story? My feeling about the whole fiasco is that Dave would have been far better off if the Asylum Office had simply denied his case in November 2012 rather than issue a recommended approval. Under U.S. law, a person does not have a duty to rescue another who is in danger. However, if a person undertakes a rescue, he is obligated not to act negligently. The U.S. has created a system for asylum. People like Dave rely on that system. In this case, the system failed Dave, and–at least for him–the lure of asylum and of safety created by the asylum system cost him and his family dearly: Two-plus years with his wife and children lost, other options for safety missed, savings exhausted.

There is an ironic denouement to the story. A few months after Dave left the U.S. and 2.5 years after the recommended approval, the Asylum Office sent a notice to get fingerprinted: “Please process the fingerprints as quickly as possible,” the note advised. Was this a cruel joke? I tried to have the fingerprints done at the U.S. Embassy in Kabul, but they could not (or would not) do it. We have still not heard from the Asylum Office about Dave’s case. I suppose it remains pending, but who knows? When last I emailed Dave (about the fingerprints), he replied, “I still have hope and… I am hopeful.”

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These days, I feel a bit like a broken record: Delay, delay, delay. It’s all I seem to write about (and what I spend much of my work day dealing with). But it is the big issue with asylum cases, both in the Asylum Office and the Immigration Court, and so it is on everyone’s mind. Today I want to talk about delay at the Asylum Office and what can be done about it.

Most recently, the Asylum Office changed its policy and is now interviewing old cases before new cases. This means that new cases will probably take one to two years before the interview. Previously-filed cases will be interviewed in the order that they were received by the Asylum Office. Our oldest backlog cases–filed in April 2013–have just been scheduled for interviews, so we are starting to see the effect of the new policy.

Anyway, let’s get to it. If your case is delayed, what can you do about it? There are several actions you can take to try to get a faster interview date. None of them is guaranteed to work, but–depending on your circumstances–some may be worth a try.

Short List: You can put your case on the “short list.” The short list is a list of people who will be contacted for an interview if another case is canceled. In my local Asylum Office (Virginia), there are approximately 250 cases on the short list. The Asylum Office interviews about 10 such cases per month, so the “short list” is not very short or very fast. When your name is called, you may not have much notice before the interview (for example, the Asylum Office could call you today and tell you to appear for an interview tomorrow). For this reason, when you put your name on the short list, your case should be complete and all documents should be submitted. This is particularly crucial if your Asylum Office–like mine–requires all documents to be submitted at least one week prior to the interview.

Once your name is on the short list, the Asylum Office will eventually contact you for an interview. In the event that you are called, but cannot attend, there is no penalty. However, your name will go to the back of the line, so probably you will not be called again for some time.

The bottom line here is that the short list may be a way to get an earlier interview date, but it is not all that fast. So it is certainly not a perfect solution. On the other hand, there really is no downside to putting your name on the short list, so if you would like to move your case faster, this is a good first step.

Request to Expedite: If you have a medical, family, professional, or other emergency or need, you can ask the Asylum Office to expedite your case. We have had mixed luck with this option. We’ve tried to expedite for several people where they had family members overseas who were facing problems. For most of these cases, the Asylum Office did not expedite, but for a few, it did. We were able to expedite a case where the client had cancer. We’ve also had luck expediting a case where the client needed to obtain status for professional reasons. In short, our success at expediting cases seems to have little relationship to the seriousness of the client’s problem.

If you want to expedite your case, you need to contact the Asylum Office and ask to expedite. You need to explain why you want to expedite and include some evidence–such as a doctor’s note–about the reason you want the case expedited. Again, we’ve had very mixed success with getting our clients’ cases expedited, but there really is no down side to trying.

Congress: You can contact your local Congressional Representative to ask for help with your case. You can find contact information for your local Representative here and for your state’s Senators here. Generally, in my experience, this option has not been effective at getting a faster interview date, but there is no harm in trying. If you have a U.S. citizen friend (or church group or other group) who can make this request for you, it may be more effective.

DHS Ombudsman: You can inquire with the DHS Ombudsman’s office about your case. This office exists to assist people who have problem cases. The Ombudsman’s website is here. I have a high opinion of the Ombudsman’s office, and they do want to help, but I think their ability to make cases go faster is very limited. I doubt they will be able to help make a case faster under ordinary circumstances. But perhaps if you have tried to expedite due to an emergency, and you have not had success, they could assist you.

Mandamus: You can file a Mandamus lawsuit against the Asylum Office. In a Mandamus lawsuit, you sue the Asylum Office and ask the Judge to order the Asylum Office to do its job (process your case). I have never done this, but I have heard about some applicants successfully suing the Asylum Office. Generally, the Asylum Office will not want to waste resources fighting Mandamus suits, so they might agree to process the case rather than fight the lawsuit. As I see it, the two downsides to this are: (1) There is not a strong legal basis to force the Asylum Office to process a person’s case. The regulations generally require asylum cases to be processed in less than six months, but there are broad exceptions to this time frame, and the Asylum Office can rely on those exceptions to process cases more slowly. Although the suits may not be very strong legally, they can still succeed where the Asylum Office would rather interview the applicant than fight the lawsuit; and (2) It can be expensive to hire an attorney to process a Mandamus lawsuit. For applicants who can afford this approach, however, it might offer a way to make things faster (though it will surely not enamor you to the Asylum Office). 

To learn more about your options, you may want to contact your local Asylum Office. Contact information about your office can be found here. There is no magic solution to delay at the Asylum Office, but I hope that some of these suggestions will be helpful. If you have had success with these or other ideas, please let us know.

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Some asylum seekers file their applications and never receive an interview. Others are interviewed for asylum and never receive a decision. I’ve discussed the first problem–called the backlog–several times, but today I want to discuss the second problem. What happens to people who are interviewed for asylum, but then wait forever for a decision?

I’ve had a number of clients with this problem. They fall into a few broad categories.

One group are people from countries that are considered a security threat to the United States–countries like Afghanistan, Syria, Iraq, and Somalia. People from such countries are subject to more extensive—and thus more time consuming—security background checks. The security check process is very opaque, so we really don’t know much about what the government is checking or why it takes so long, and the length of the delay seems to have nothing to do with the person’s personal history (for example, I’ve had clients who worked in the U.S. Embassy in their country or with the U.S. military, and still the background check was delayed). To me, the security background check delays don’t make sense. If the person is a threat to the United States, allowing him to live freely here for months or years while the government investigates his background seems like a bad idea. Another aspect of the background check that does not make sense is that asylum seekers in court never seem to be delayed by security checks. Also, aliens seeking their residency in other ways (marriage to a U.S. citizen or through employment) don’t seem to have problems with background checks either. While the need for background checks is clear, the inordinate delays for asylum seekers is hard to understand.

Another group of people who face delays after the interview are people who may have provided “material support” to terrorists or persecutors. I have a client like this–he was kidnapped by terrorists and released only after he negotiated a ransom (which was paid by his relative). Had he not paid the ransom, his case would not have been delayed post-interview. Of course, had he not paid the ransom, he would have been killed by the kidnappers, so the point would probably be moot. I imagine that his case is subject to review by Headquarters, which again, seems reasonable. But why it should take 10 months (so far) and what they hope to discover through an additional review, I don’t know.

A third group of people whose cases are delayed are members of disfavored political parties or organizations. Such people might also be subject to the “material support” bar, but even if they have not provided support to persecutors, their cases might be delayed.

A final group are high-profile cases, such as diplomats and public figures. When such a person receives asylum (or is denied asylum), there are potential political ramifications. Again, while I imagine it makes sense to review such cases at a higher level, I am not exactly sure what such a review will accomplish. The law of asylum is (supposedly) objective–we should not deny asylum to an individual just because her home government will be offended–so it is unclear what there is to review.

These delays are particularly frustrating given that decisions in asylum cases should generally be made within six months of filing.  According to INA § 208(d)(5)(A)(iii), “in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” Unfortunately, the “exceptional circumstances” clause is the exception that swallows the rule. These days, everything from backlog to background check to Asylum Office error seems to pass for exceptional circumstances. I know this is not really anyone’s fault–the Asylum Offices are overwhelmingly busy, but it is still quite frustrating.

Indeed, I have had clients waiting for more than two years (two years!) after their interview, and the asylum offices can give us not even a hint about when we will receive a decision. The worst part about these delays is how they affect asylum seekers who are separated from their families. I’ve already had a few clients with strong claims abandon their cases due to the intolerable wait times. The saddest case was an Afghan man who recently left the country, two years after receiving a “recommended approval.” The client had a wife and small children who were waiting in Afghanistan. After he received the recommended approval–in 2012–we were hopeful that he would soon receive his final approval, and then petition for his family. After enduring a two-year wait, during which time first his child and then his wife suffered serious illnesses, the client finally gave up and returned to his family. This is a man who worked closely with the U.S. military in Afghanistan and who has a very legitimate fear of the Taliban. In his case, we would have been better off if the Asylum Office had just denied his claim–at least then he would have known that he was on his own. Instead, he relied on our country for help, we told him we would help, and then we let him down.

Delays after the interviews seem to affect a minority of applicants, and they have not garnered as much attention as the backlog. However, they can be just as frustrating and never-ending as backlogged cases. At the minimum, it would be helpful if the Asylum Offices could provide some type of time frame for these people, particularly when they are separated from family members. As DHS struggles to deal with the backlog, I hope they don’t forget about those who have been interviewed, but who are also stuck waiting.

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For certain applications with USCIS, the applicant can pay an additional fee of $1,000.00 and receive “premium processing.” For people seeking an H1B visa or a green card based on extraordinary ability, payment of the premium processing fee is the norm, and the result is that USCIS responds to the application (sometimes with an approval, other times with a request for additional evidence) within a few weeks. So should premium processing be available for people seeking asylum?

There are certainly arguments against such a scheme: Humanitarian benefits should not be for sale, it is unfair to privilege wealthy applicants over poor applicants, asylum is somehow cheapened by making it more expensive. But given the current state of affairs in the asylum world, I think that USCIS should allow premium processing for asylum seekers who want it and can pay for it.

First, the current state of affairs: The asylum system is groaning under the weight of too many applications. Thousands of cases from 2013 are still lost in limbo, and–at least based on my observation of the local office here in Virginia–we seem to be on the verge of another slow down. People separated from family members have no recourse except to wait. And worse, they have no idea how long they will have to wait. The Asylum Offices have created “short lists” where (supposedly) you can put your name on a list, and if a slot opens up, you will be interviewed. So far, at least for my clients, this seems to work not at all. The bottom line is that we are facing very long delays and applicants and their family members are suffering severely.

So how would premium processing help?

Obviously, for those applicants who could pay the fee (whether $1,000.00 or some other amount), their cases would be given priority. This would benefit those applicants who pay the fee, but–if implemented correctly–it would also benefit people who do not pay the fee because the premium processing cases would be removed from the general queue, which would free up interview slots for everyone else.

Quantifying the effect of a premium processing fee is a bit tricky, however. For one thing, it is not easy to find asylum statistics from the government. A good guess is that between 3,500 and 4,000 people per month file affirmative asylum cases. That is approximately 40,000 people per year. If half those people paid a premium processing fee of $1,000.00, an additional $20 million would be pumped into the system. This would be a significant increase in funding. As best as I can tell, the budget for asylum and refugee operations for FY 2014 is about $236 million, so an additional $20 million for asylum operations alone would be a major increase (the asylum and refugee budget is paid for by USCIS application fees from non-asylum cases, so the cost to U.S. tax payers is minimal). With this additional money, the Asylum Offices could hire more officers, provide resources to expedite background checks, set up a system so applicants could track the progress of their cases, and even provide free donuts and coffee to attorneys waiting for their clients’ interviews. In other words, the money could be used to improve the system for everyone, including those who do not pay the fee.

Of course, we don’t know how many asylum applicants would (or could) pay a premium processing fee, but I suspect that many would pay. Remember that asylum applicants differ from refugees in that they have come to the United States on their own. Whether they came legally or illegally, it is likely that they paid for their journey here. Also, many asylum applicants pay attorneys or notarios to prepare their cases. My guess is that many such people would be happy to pay a fee if it meant that their cases would be adjudicated more quickly.

I must admit that I feel a bit uncomfortable about asking asylum applicants to pay the government to adjudicate their cases (which is maybe ironic, since I ask them to pay me). But given the difficulties caused by long delays (separation from family, stress, uncertainty), I feel that the benefits of a premium processing system would far outweigh any disadvantages.

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Last time, I discussed the asylum case backlog from 2013: Why it happened, what (little) can be done to help, and DHS’s justification for processing new cases before old cases. Today, I want to make some suggestions about how DHS might better handle this situation.

First and foremost, DHS should provide better information about what is happening. While I imagine that DHS does not always know what is happening (after all, the backlog is unprecedented), it could be providing better information to the backlogged applicants. Some info that would be helpful: (1) An estimate of when the backlogged cases will be heard. Maybe DHS has no idea, but at least tell us something. Apparently, many new officers and support staff have been hired. Will some of these people be dedicated to backlogged cases (I’ve heard that at the San Francisco office one or two officers will be assigned to backlogged cases). Is there any sort of plan to deal with the backlog? Leaving applicants completely in the dark is the worst possible way to handle the situation; (2) If a particular Asylum Office has an “expedite list,” it would be helpful to know the applicant’s place in line and how many people are on the list. Is she the third person or the 200th person? This would at least give some idea of the wait time, especially if DHS updated each person’s place in line as they move forward; and (3) It would be very helpful if the Asylum Offices explained why the backlog exists, what they are doing about it (hiring new officers), and what the applicants can do (apply for work permits, criteria to have a case expedited). While people like me can try to tell applicants what we know (and hopefully our information is more right than wrong), it is far better to hear it from the source. Each Asylum Offices has its own website, so it should be easy enough to publish this information.

Another thing the Asylum Offices could do to ease the pain of the backlog is to give priority to backlogged cases based on family reunification. As I noted last time, one justification for the backlog is that applicants can get their work permits while their cases are in limbo. Of course, the work permit is helpful (even crucial) for many applicants, but for people separated from spouses and children, reunification is the number one issue. This is especially true where the family members are in unsafe situations. I know that in a large bureaucracy, nothing is as simple as it seems, but why can’t DHS prioritize expedite requests where the applicant has a spouse or child overseas?

A third possibility is to dedicate one or more Asylum Officers in each office to work on backlogged cases. As I mentioned, San Francisco will assign one or two Officers to deal with the backlog. What about the other offices? At least if we could see some progress–even a little–with the old cases, it would give hope to the people who are waiting.

Finally, once a backlogged case is decided, DHS should give priority to any I-730 (following to join) petition filed by a granted applicant. Family separation is a terrible hardship. At least DHS (and the Embassies) can make up for some of the delay already suffered by moving I-730s for these cases to the front of the line. These applicants and their families have already waited long enough.

In a perfect world, asylum cases would be processed in the order received. However, I understand DHS’s concerns and the reasons for adjudicating new cases before old cases. By providing more information to backlogged applicants and by giving priority to people separated from their families, DHS can ease the pain caused by delay without implicating the policy concerns that brought us the backlog in the first place.

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If you are an asylum seeker who filed an affirmative asylum case between about January 2013 and October 2013, you probably have not yet been interviewed, and your case has–seemingly–disappeared into a black hole. Meanwhile, other asylum seekers who filed after you are being interviewed and receiving decisions. So what gives?

As best as I can tell, in early 2013, the asylum offices nationwide essentially stopped hearing cases. The reason is because there was an influx of asylum seekers at the US/Mexico border. People who arrive without a visa at the border, and who request asylum, are detained. They then have a “credible fear interview” to determine whether they might qualify for asylum. If they pass the interview, they are generally released and told to return later to present their asylum case to an Immigration Judge.

Because of the large increase in the number of people arriving at the US/Mexico border (and being detained), the Department of Homeland Security shifted Asylum Officers from across the country to the border. DHS prioritized the border cases because those people were detained. Of course, detaining so many people is very expensive; it is also not so nice for the people who are detained. Assuming that no additional resources were available, I suppose it is difficult to argue with DHS’s decision to give priority to the border cases.

To deal with the increased demand, DHS also began hiring new Asylum Officers. The word on the street was that they planned to hire 90 to 100 new officers nationwide (which is quite significant) and that they would be trained and ready before the new year. Sure enough, we started to receive interview notices for our clients sometime in October (most of our clients interview at the Arlington, Virginia Asylum Office). Since October, our clients generally wait from one to three months from the time we submit the application to the date of the interview. That’s the good news.

But since they started hearing cases again, the Asylum Offices have been scheduling people on a last-in, first-out basis. In other words, cases filed after October 2013 are being heard, while cases filed between January 2013 and October 2013 are stuck in the “backlog.” There are two issues I want to discuss about the backlogged cases: (1) Whether there is anything that can be done if your case is backlogged; and (2) Why isn’t DHS doing the cases in the order received?

First, there are a few things you can try if your case is backlogged. For one thing, if 150 days have passed since you filed your asylum application, you can file for a work permit.

If you want to expedite your case, there is a procedure (at least in Arlington) to request an expedited interview. However, there are a number of problems with this procedure. The most serious problem is that it does not seem to work. When you request an expedited interview, your name is placed on a list. If another asylum applicant cancels her interview, you (theoretically) will be given her time slot. The problem is that not many people cancel their interviews, and many people are on the expedited list. Also, if you happen to get an expedited interview, you will have very little notice, and so there may be insufficient time to prepare.

Another possibility to expedite a case is to contact the USCIS Ombudsman. This is the government office that tries to assist immigrants and asylum seekers with their cases, and I have used it successfully a few times (though not for asylum cases). While I have a very high opinion of this office, its ability to expedite cases seems quite limited. One example of where it might be effective is if you have requested an expedited date due to a serious health problem (of you or a family member). After you have made the expedite request with the Asylum Office, and if that office does not expedite the case, the Ombudsman might be able to assist. In short, while the Ombudsman might be helpful for certain situations, it will probably not be able to assist in most cases.

I suppose you could also try contacting a Congressperson, holding a sit-in or going on a hunger strike. I doubt any of these methods will be effective, but it you have luck, please let me know.

The second issue I want to discuss is the logic behind DHS’s decision to hear new cases before backlogged cases. I have the impression (from talking to several people on the inside) that there was a heated debate within the government about how to deal with this issue. It seems there are several reasons why DHS decided to hear new cases before backlogged cases.

The main reason for hearing new cases first seems to be that DHS fears an influx of fraudulent cases. The logic goes like this: If cases are heard in order, delays will ripple through the system, and the average processing time for a case will dramatically increase. Cases will take much longer, but applicants will continue to receive their employment document six months after filing. This will create an incentive for aliens to submit fraudulent applications, which will further clog the system. By hearing new cases first, processing times are faster (except for the people left behind), and the incentive to file a fraudulent case and obtain a work permit is reduced.

Tied to this fear of more fraudulent cases is a fear of Congress. The House recently held hearings on asylum, and there is a general (and probably accurate) belief that the ultimate aim of these hearings is to restrict asylum. DHS believes that increased delays (and thus increased incentives for fraud) in the asylum system will make it easier for the Congress to pass more restrictive laws related to asylum. In other words, DHS does not want to play into the hands of the restrictionists by increasing processing times for asylum cases.

Finally, there is a general belief at DHS that delays are not all that damaging to applicants stuck in the backlog because such people at least have their work permits. If you forget about the stress and uncertainty, it is true that single applicants without children can work and live in the U.S. while their cases are pending. But for people who are waiting to be reunited with family members–especially when those family members are in dangerous or precarious situations–the delays can be deadly.

So that is the basic situation, at least as far as I can tell. Next time, I will discuss some possible solutions to the problem.

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