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.
MaryBeth Keller was the Chief Immigration Judge of the United States from September 2016 until July 2019. She was the first woman to hold that position. The Asylumist sat down with her to discuss her career, her tenure as CIJ, and her hope for the future of the Immigration Courts.
Asylumist: Tell us about your career. How did you get to be the Chief Immigration Judge of the United States?
Judge Keller: I was appointed to the position by Attorney General Loretta Lynch in 2016. By that time, I had been at EOIR (the Executive Office for Immigration Review) for 28 years, and had a lot of experience with and knowledge of the entire organization, especially the Office of the Chief Immigration Judge (“OCIJ”) and the Board of Immigration Appeals (“BIA”).
After law school at the University of Virginia, I clerked for state court judges in Iowa. I wanted to return to DC, and in those days – the late 1980s – there were a lot of options. I submitted my resume to a federal government database and was selected to interview at the BIA for a staff attorney position (they liked the fact that I had taken an immigration law class with Professor David Martin at UVA). At the interview, I knew it would be an incredible job. The BIA is the highest level administrative body in immigration law, and the people I met seemed happy to be there. I thought I would stay maybe two years and then move on, but I ended up remaining with EOIR for 31 years.
MaryBeth Keller
I was at the BIA for about 15 years, nine of those as a manager. In my early days as a staff attorney, I helped revitalize the BIA union, which was basically defunct when I arrived. Some employees had wanted to simply decertify the union, but a colleague and I convinced the majority of attorneys and staff that it could be a useful organization, so they voted to keep it. I was the union president for several years. After I later became a manager, my colleagues joked that my penance for having led the BIA union was to have to deal with the union from the other side. I helped then-Chairman Paul Schmidt revamp and restructure the BIA in the mid-1990s.
From there, I served as EOIR’s General Counsel and was involved with many reforms, including the institution of the first fraud program and a program to address complaints about the conduct of Immigration Judges. This ultimately led to my appointment as the first Assistant Chief Immigration Judge (“ACIJ”) for Conduct and Professionalism (“C&P”). At the time, David Neal was the Chief Immigration Judge, and we built the C&P program from whole cloth. In addition to responsibility for judge conduct, performance, and disciplinary issues, I supervised courts from headquarters and was the management representative to the judges’ union. All of this experience led to me to the position of Chief Judge.
Asylumist: What does the CIJ do? How is that position different from the EOIR Director or General Counsel?
Judge Keller: I view the CIJ’s job as leading the trial level immigration courts to execute the mission of EOIR, including, most importantly, managing the dockets to best deliver due process. In practical terms, this involved hiring and training judges and staff, determining the supervisory structure of the courts, directing the management team of Deputies, ACIJs, and Court Administrators, overseeing the Headquarters team that supports the field, including an administrative office, a business development team, legal advisers, an organizational results unit, and an interpreters unit. The CIJ also collaborates with the other senior executives such as the Chairman of the BIA, the General Counsel, and the Director of Administration to coordinate agency activities on a broader scale. In years past, the CIJ acted as a high-level liaison with counterparts in DHS, the private bar, and other governmental and nongovernmental groups.
The regulations–specifically 8 C.F.R. 1003.9–describe the function of the CIJ. I kept a copy of that regulation on my wall. The regulations set forth the CIJ’s authority to issue operational instructions and policy, provide for training of the immigration judges and other staff, set priorities or time frames for the resolution of cases, and manage the docket of matters to be decided by the immigration judges.
Despite the regulation, under the current Administration, much of the CIJ’s, authority has been assumed by the Director’s Office or the newly created Office of Policy. Court operational instructions, court policy, the provision of training, setting priorities and time frames for case disposition, and many other matters are now being performed by the EOIR Director’s Office, with minimal input from the CIJ and OCIJ management. I do recognize the regulation setting forth the authority of the Director, as well as the fact that the CIJ’s authority is subject to the Director’s supervision. However, reliance on career employees and specifically the career senior executives (Senior Executive Service or SES) at the head of each EOIR component is significantly diminished now. I believe that is compromising the effectiveness of EOIR as a whole. Senior Executives have leadership skills and incredible institutional knowledge and experience that should bridge that gap between policy and operations. They should be a part of developing the direction of the agency and its structure to most effectively accomplish its functions, but are instead largely sidelined and relegated to much more perfunctory tasks. I worry that people with valuable skills will not be satisfied with decreased levels of responsibility, and will leave the agency. This will make it more difficult for EOIR to meet the challenges it is facing.
To answer the question as to how the CIJ position is different from the Director and General Counsel, the EOIR Director manages all the components of the Agency (BIA, OCIJ, Administration, and OGC) and reports to the Deputy Attorney General. The EOIR General Counsel provides legal and other advice to the EOIR component heads and the Director.
Asylumist: What were your goals and accomplishments as CIJ? Is there anything you wanted to do but could not get done?
Judge Keller: I was fortunate to serve as the CIJ at a time of many changes: Hiring an unprecedented number of IJs, finally beginning to implement electronic filing, and creating new ways to effectively complete cases. At the same time, we faced challenges, such as the ever-changing prioritization of certain types of cases, an increased focus on speed of adjudication, and the creation of the new Office of Policy within the agency, which was given far-reaching authority.
Amid these changes, one of my goals was to use my experience at the agency and my credibility to reassure judges and staff that, despite any changes, our mission of delivering fair hearings and fair decisions would remain unchanged. I always told new classes of judges that their primary responsibility was to conduct fair hearings and make fair decisions. Due process is what we do. And if we don’t get that right, we are not fulfilling the mission of the immigration court. I had the sense that my presence as CIJ gave people some level of security that we were holding on to that mission during all of the change.
Another goal was to hire more staff. I thought I would have more control over hiring and court management than I ultimately did. In terms of hiring, while we greatly increased the number of IJs, it is important to remember that IJs cannot function without support staff: Court administrators, legal assistants, clerks, interpreters, and others. The ratio is about 1-5, judges to support staff. Our hope was also to have one law clerk per IJ and we made some major progress in that regard. It might be wiser for EOIR to take a breather from hiring more judges and focus on hiring support staff, because that is imperative for the court to function. Overall, I was not able to prioritize staff hiring as I would have liked, nor was I confident that my office’s input had much impact on hiring decisions.
Aside from hiring many more judges, some of the positive changes we made while I was there included implementing shortened oral decisions–we do not need a 45-page decision in every case. Shorter decisions, where appropriate, are vital to increasing efficiency. We also encouraged more written decisions. It seems counterintuitive, but written decisions can actually be more efficient than oral decisions. If you have the written material available, as well as law clerks, and the administrative time to review the decision, written decisions save the time that would be spent delivering the oral decision and that time can be used for additional hearings. For this purpose, we greatly increased the accessibility of legal resources for both judges and staff through the development of a highly detailed and searchable user-friendly electronic database of caselaw, decisions, and other reference material.
Importantly, we were also working on ways to replace the standard scheduling based on Individual and Master Calendar Hearings. Instead, in a manner more like other courts, we would schedule cases according to the particular needs of the case, including creating, for example, a motions docket, a bond docket, a short-matters docket. Cases would be sent to certain dockets depending on what issues needed to be addressed, and then move through the process as appropriate from there. Different judges might work on one case, depending on what was needed. During the course of this process, many cases would resolve at the earliest possible point, and some would fall out–people leave the country, they obtain other relief, etc. But in the meantime, such cases would not have taken up a normally-allotted four hour Individual Calendar hearing block in the IJ’s schedule. We were looking to do at least three things: Secure a certain trial date at the start of proceedings, allot time judiciously to each matter, and reduce the time between hearings. If the immigration courts could successfully transition to this model, it would improve the timeliness and rate of completion of final decisions.
While I was CIJ, we also looked to see how other courts dealt with issues such as technology. For example, we went to see the electronic systems at the Fairfax County, Virginia court. That system is more advanced than EOIR’s, and it would, for example, allow a judge to give advisals that are simultaneously translated into different languages for different listeners. This would eliminate the time it takes to do individual advisals, without sacrificing the face-to-face time with the judge. We also investigated video remote interpreting, which is having the interpreter in the courtroom via video, so everyone can see and hear each other as if they were in the same place. IT infrastructure to properly support such initiatives is very expensive, but is obviously currently available and used by other court systems. Changes like improving the interpretation system and implementing e-filing and a user friendly electronic processing system would make a profound difference in how the courts operate.
I believe that some of these ideas are still being considered, but the problem is that there does not seem to be much patience for changes that are not a quick fix. I had hoped to move things further than we were able to, but we did make progress as I discussed.
As another example of a positive accomplishment, EOIR is now very effectively using more contractors for administrative support. This was started by Juan Osuna when he was Director of EOIR, and it has been highly successful. Because our growth has been so rapid, contract employees allow us to get top-notch people quickly, and gives us the flexibility to easily replace someone whose performance is not up to speed. Contractors are not a substitute for permanent employees, but can bridge the gap between a vacancy and a new hire. Once contractors have some experience, they can apply for permanent positions and by then, we have good knowledge of their skills and can hire experienced workers.
Finally, a major accomplishment was that I was the first female Chief Immigration Judge. Even though my experience was extensive, I still had to fight to get the job, including nine hours of interviews. At the time, I think I underestimated how much the workplace was still unaccustomed to women in particular positions. The emails I received after I left the job were astounding. Men and women alike wrote to tell me how much it meant to them to have a female CIJ.
Asylumist: How did things at EOIR change between the Obama Administration and the Trump Administration?
Judge Keller: Things now are unlike any time in the past. As I think we have been seeing throughout government during this Administration, the difference seems to be that there is now a fundamental distrust of people and organizations in the federal government. Over three decades, I have worked through a variety of administrations at all points on the political spectrum. Long-time federal employees are very accustomed to altering course when new administrations come in, whether or not the political parties change. Many employees and executives like me welcomed change as an opportunity to move their organizations forward and make the delivery of their services better. But if those in political power do not trust their subordinates and the functions of the agencies they run, it’s a very different and difficult scenario.
Some of the “small p” political pressure was happening by the end of the Obama Administration. For example, we saw this with children’s cases and the instruction we received from Justice Department leaders in political positions to prioritize those cases on our dockets. Still, in that instance, once the political goal was set, the best way to accomplish the goal, and even its ongoing feasibility, was largely left to senior staff in the agency with operational expertise to implement or to ultimately advise superiors that a different course of action might be needed. Now, very often both the political and the operational decisions down to the smallest details are dictated from above. For example, even my emails and communications to staff were edited from above. Aside from the very questionable advisability of having operational determinations made by persons with no operational expertise, this approach subjects the court process to claims that it is not neutrally deciding cases but instead deciding cases in the manner that political leaders would like.
Until recently, I had never really thought very hard about an Article I court for immigration cases. I thought that the line between politics and neutral adjudication was being walked. There was no major concern from my perspective about EOIR managers navigating that line. Now, the level of impact of political decisions is so extraordinary that I wonder whether we do need to remove the immigration courts from the Department of Justice. I’ve just started to seriously consider the validity of this idea and I need to do more research and thinking about it. The American Bar Association’s recommendations are very persuasive and of significant interest to me. Before, I would not have thought it necessary.
Of course, moving the Immigration Courts to Article I status would not solve all our problems, but it could free us from some of the questions that have been raised over the years about politicized hiring, how cases are being politically prioritized, and whether that is appropriate for a court.
Another large change came in our ability to talk to those we serve. To best function, you have to talk to stakeholders on both sides: The Department of Homeland Security (DHS) and the private bar/respondents. This used to be standard procedure in past administrations, and it was done at both the upper and ground levels. Recently, such conversations were much more limited, and took place primarily at higher levels, often above my position and that of my Deputies. This change was touted as a way to streamline the Agency’s messaging system, but cutting off other forms of communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.
We previously had a great relationship with the American Immigration Lawyers Association (“AILA”). For example, when I was working on conduct and professionalism for Immigration Judges, AILA was a great help. At the time, AILA’s message was the same as our message (poor conduct of adjudicators and representatives should be addressed), and we successfully partnered for a long time. Similarly, the CIJ previously had regular interactions with DHS’s Principal Legal Advisor and others in the DHS management chain, but that is no longer the case. Another change to the management structure that I believe was ill-advised was abolishing the “portfolio” ACIJs who bore targeted responsibility for several very important subjects to immigration court management: Judge conduct and professionalism, training, and vulnerable populations. In my experience, having officials whose specialized function was to oversee programs in these areas increased the integrity, accessibility, credibility, and efficiency of the court.
Asylumist: While you were CIJ, EOIR implemented quotas. IJs are now supposed to complete 700 cases per year. Can you comment on this?
Judge Keller: Many different court systems have performance goals and I am generally in favor of those. But the question is, How do you establish and implement them? Are you consulting the managers and IJs about it? How do you come up with the goals? Should they be uniform across the courts? The current requirements were not developed by me or my management team. Numeric expectations alone are not going to fix things. Timeliness is more important in my view than specific numbers. Moreover, the way that the emphasis is being placed on these numbers now sends the wrong message to both the parties and our judges and court staff. Also, court staff and stakeholders would more likely buy into such a change if they understood how the goal was developed, and why. My experience is that IJs are generally over-achievers and they want to do well and will meet or exceed any goals you set. In my view, completing 700 cases may be an appropriate expectation for some judges and dockets, and might be too high or even too low for others. Courts, dockets, and cases are vastly different from the southern border to the Pacific Northwest to the bigger cities, so I’m not sure about a one-size-fits-all approach.
Asylumist: What about the Migrant Protection Protocols (“MPP”), also known as the Remain in Mexico policy. Can you comment on the effectiveness or efficacy of this program?
Judge Keller: The MPP began right before I left EOIR. In the MPP, as with all dockets, the role of the immigration court is simply to hear and resolve the cases that DHS files, but there were and still are, many legal and procedural concerns about the program. For example, what is the status of a person when they come across the border for their hearing, are they detained or not? Also, there were significant practical considerations. If you bring people across the border and plan to use trailers or tents for hearings, you need lines for IT equipment, air conditioning, water, bathrooms, etc. All that needs to be taken care of well in advance and is a huge undertaking. My impression of the MPP was that it was a political policy decision, which, even if an appropriate DHS exercise, is evidence of how asking the court to prioritize political desires impacts the overall efficiency of the court. The resources it required us to commit in terms of planning, and the resources it took away from the remaining existing caseload will likely contribute to further delay in other cases.
Asylumist: According to press reports, you and two other senior EOIR officials–all three of you women–were forced out in June 2019. What happened? Why did you leave?
Judge Keller: Unless there is something I don’t know about my two colleagues, none of us was forced out. I was not. We could have stayed in our same roles if we had chosen to do so. At the same time, I would not necessarily say that our departures were completely coincidental. I do know that the nature of our jobs had changed considerably.
For me, the previous level of responsibility was no longer there, and I did not have the latitude to lead the OCIJ workforce. My experience and management skills were not being used and I was mostly implementing directives. Any time three experienced, high-level executives depart an agency, there should be cause for concern. The fact that we were all women certainly raises a question, but EOIR has always been pretty progressive in that regard. Nevertheless, appropriate equal respect for women in the workplace is something that unfortunately still needs attention everywhere.
Leaving EOIR was a hard decision for me to make, and I think it was a big loss for EOIR that all three of us chose to exit.
The politicization of the court was also a concern for me. Historically, the Director of EOIR was always a career SES appointee, not a political SES. I viewed that as critically important, symbolically and practically, for a court system, especially one like the immigration court within the Executive Branch. Director James McHenry is in a career Senior Executive position. However, his path to the position was through the new Administration, which had detailed him from his position as a relatively new Administrative Law Judge to Main DOJ as a Deputy Assistant Attorney General for a while before he became the Director. It appears that the large majority of his career otherwise was at DHS in non-managerial positions.
Successfully overseeing or managing an organization the size of EOIR with all of its challenges today would be difficult even for a seasoned executive with a lot of management experience.
The question at this time for EOIR is, How does your mission of fair adjudication of immigration cases fit within the broader immigration goals of the government? It takes deft and nuanced management to ensure the integrity of a court of independent decision-makers while maintaining responsiveness to political leaders. A good manager listens to people with expertise and is skilled at motivating others, getting the most from each employee, developing well-thought-out operational plans to reach policy goals, and even changing course if necessary. Under Director McHenry, the advice of the agency’s career executives was often not even solicited, and did not appear to be valued. His approach caused many to question the soundness of his operational decisions, and his commitment to the mission of the court, as opposed to accommodating the prosecutorial goals of DHS. I didn’t think there was as much focus on improving how we heard cases, as there was on meeting numeric goals and adjusting to the priorities of the DHS.
Asylumist: The BIA recently added six new members. All are sitting IJs and all had lower than average asylum approval rates. Do you know how these IJs were selected? What was the process?
Judge Keller: This was stunning. I can’t imagine that the pool of applicants was such that only IJs would be hired, including two from the same city. I think IJs are generally eminently qualified to be Board Members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that. At both the courts and the BIA, we used to get applicants for judge positions from academia, the private sector, BIA, and other governmental entities. More recently, we also had experienced judges and adjudicators from various other administrative systems, the military, and state and local courts applying to be IJs. I find these recent BIA hires to be very unusual.
I do not know the process for selection, but suspect that Board Chairman David Neal* had minimal input into these hires. I find this scenario very odd.
* Note: Since this interview took place, the Chairman of the BIA, David Neal, left his position and retired from the federal government. Before serving as Chairman of the BIA, David Neal held many other leadership positions at EOIR over many years, including the Vice-Chairman of the BIA and Chief Immigration Judge.
Asylumist: EOIR has made some moves to decertify the IJ union. Do you know why? What do you think about this?
Judge Keller: This happened after I left, but of course, it is easier to run an organization without people questioning you. Good managers recognize that you want opposing viewpoints. Maybe I am biased because I was a union officer, but I was also a manager longer than I was a union leader, and I’ve seen both sides. When I first learned that attorneys and judges were unionized, I was surprised, but I have seen the value of that. As a manager, the union is a great source of information. There are inherent conflicts between management and any union, but the union often has goals similar to those of management. The relationship between a union and management must be carefully developed, managed, and maintained. In the end, I felt it was worth the extra effort.
Now, I think management is more comfortable without public questions. I think decertifying is a mistake, particularly now when there are so many other changes that demand focus.
Asylumist: When he was Attorney General, Jeff Sessions gave a speech to EOIR where he claimed that most asylum cases were fake. This is also a line we frequently hear from the Trump Administration. What was your opinion of that speech?
Judge Keller: I think you may be referring to a press conference the Attorney General held at EOIR in October 2017. In a speech that day, the Attorney General said that the asylum system was “subject to rampant abuse and fraud.” That was disheartening. Fraud is not a factor in the large majority of cases. We know about fraud and we have been dealing with it probably since the inception of the immigration court. But it is not true that overwhelming numbers of asylum seekers are coming to immigration court trying to fraudulently obtain benefits. Whether the majority of their claims ultimately lack merit is a different question. But it is the very fact that we have a robust system to examine and decide asylum claims that makes our country a role model to others. I do not think statements like that made by the Attorney General are helpful to the court’s credibility. If IJs had that speech in mind in court, they would be labeled as biased, and bias is not a good thing for a judge or a court.
For the current Administration, I think there is an underlying skepticism about the extent to which the system is being manipulated. The process is indeed imperfect. But if you think that there are inappropriate “loopholes,” then we need to fix the law or the process. That is why comprehensive, or at least extensive, immigration reform has been discussed for so long. The Attorney General articulated some potential improvements he wanted to make, but also unfortunately focused in that speech on fraud and abuse, as if it was a problem greater than I believe it is.
When I would give my speech to new IJs, I would tell them that they would see the best and the worst of human nature in immigration court. As an IJ, you see persecutors and those who were persecuted; courageous individuals and liars. It is a huge responsibility. Therefore, you can’t go into court as an IJ and be thinking either that everyone is telling the truth, or that everyone is manipulating the process. You have to have an open, yet critical mind. It seems to me that Attorney General Sessions did not have a full appreciation for our particular role. This again brings us back to the idea of an Article I court, or some other solution to solidify the independence of immigration court adjudicators.
Asylumist: What do you think should be done about asylum-decision disparities? Does something need to be done?
Judge Keller: Yes. I think that asylum decision disparities should be evaluated by immigration court managers as they may be a sign of an underlying problem that may need to be addressed. However, I do not believe that they can or should be entirely eliminated.
If a judge is significantly out of line with his or her colleagues in the local court, it might be a red flag. Sometimes, simple things impact grant rates. For example, did the IJ miss some training in a particular area and is that affecting the grant rate? Is the judge assigned or does a court have a docket that by its nature (detained, criminal) will result in a higher or lower grant rate? Court managers should be alert to and manage those issues.
We’ve been looking at this issue for a long time. I remember talking about it with many EOIR leaders and judges over the last 10 years. But each case is different from the next and you don’t want decisions on asylum made according to mathematical formulas as if by computers. Decisions on such important human matters should be made by people who know the legal requirements, and can exercise sound judgment.
One way we thought about addressing seemingly significant disparities was temporarily assigning IJs with high or low grant rates to courts where the grant rates are different. Sometimes, the best way to evaluate your own opinions is to think through them with people who have different views. The hope was that judges would have the time and opportunity to reflect on their approach to asylum.
Once, former Director Osuna and I went to Chicago to visit the judges of the Seventh Circuit, which was at the time highly critical of our judges. We met with several of the Circuit Judges and talked about many things, including disparities in immigration court. We explained our approach to disparities, namely, addressing training needs, addressing any inappropriate conduct via discipline, and improving resources. One of the Circuit Judges mentioned that he was appreciative of our approach, and suspected that if anyone looked at it, there are probably similar disparities at the circuit court level too. As long as human beings are deciding immigration cases, there will always be some disparities. However, significant disparities should be evaluated and action taken only if the disparity is the result of something inappropriate, that is, something other than the proper exercise of independent legal judgment.
Asylumist: What is your hope for the future of EOIR?
Judge Keller: I hope EOIR can hold onto its core focus of hearing and deciding cases fairly and impartially. I also hope that the parties in the process know that we are listening to them. Parties in any court should feel that they’ve received a fair shake and a fair decision. They should understand the reasons why their cases were decided a certain way, and should not have to wait for years to get resolution. That is our reason for being – to deliver that service.
We are living in a time of big lies. President Trump is notorious for his mendacity, and many members of his Administration are no better. These lies come in different shapes and sizes, and relate to topics as diverse as climate change, election meddling, hurricane forecasts, international trade, and Joe Biden. But the biggest and most oft-repeated lies seem to involve immigrants: Asylum seekers are criminals, separating children from parents at the border was Obama’s fault, the asylum system is a scam, non-citizens are voting in our elections, illegal immigrants get free healthcare and welfare benefits, Democrats support open borders, the Diversity Visa Lottery lets foreign governments choose who gets a green card, Muslim refugees were admitted into the U.S. while Christian refugees were refused, immigrants can sponsor all sorts of distant relatives through “chain migration,” Central American countries are safe, etc., etc.
The question I want to ask today is this: If the government itself is lying about asylum seekers, why shouldn’t asylum seekers lie if it helps them win their cases?
The Asyl-Immanuel Kant approve a case where the applicant has Ben Constant-ly lying.
My interest here is not in practicality–it is clearly a bad idea to lie because you might get caught. Our government has a lot of information about asylum seekers and can use that information to test credibility. Asylum Officers, USCIS Officers, DHS attorneys, and Immigration Judges are good at examining witnesses and ferreting out falsehoods. Even if you get away with lying on an asylum application, the lie could come back to haunt you in the future (when you apply for residency or citizenship, or if you want to sponsor a family member). So there are good, practical reasons to tell the truth: You could lose your case, you could be blocked from any immigration benefits for life, you could end up in jail. And if you do get away with it, you can never really rest easy, and for as long as you are here, you will have to live with the possibility that your lie might be exposed and you could lose the life you’ve built in the United States. So in practice, lying is a bad idea. Here, though, I am interested in the morality of lying; not the practicality. Is it morally wrong to lie if that lie helps you to remain in the United States?
At one time, it would have been easy to answer that question in the affirmative. While President Obama’s policies were not always friendly to immigrants–he was called the “Deporter in Chief” by some immigration advocates–his Administration never engaged in the type of systematic dishonesty that we see from President Trump and his team. Despite all the problems during President Obama’s term (and there were many problems), at least it felt as though asylum applicants could generally have their cases adjudicated in an environment that was free from overt political interference. Given that people could get a fair shake, the moral justification for lying was a more difficult case to make.
In those distant days of the Obama Presidency, it was common to hear asylum seekers express great faith in our system of justice. That was one reason they came here in the first place. Their faith in our system made them more likely to tell the truth. Ironically, the constant barrage of lies from President Trump and his Administration is eroding faith in our system, which creates an increased incentive for individuals to falsify their own asylum stories. When the asylum system is discredited and illegitimate, the moral case for telling the truth is weakened.
Of course this outlook assumes a sort-of quid pro quo: If you (Trump) lie about me (asylum seeker), I can lie to you. This is an ends-justify-the-means approach that has never appealed to my sense of justice, and I am frankly uncomfortable with lying from a moral perspective simply because I believe lying is wrong–regardless of the end goal. But this is a type of morality that is easily deconstructed under various modern theories of legal justice. For example, when my law partner asks me, as he often does, “Do these pants make me look fat?” I always say no, even though those pants do make him look fat. I am lying for the sake of maintaining harmony in the office. Ends justifying means. So perhaps I should be less skittish about the moral implications of lying in other realms.
Indeed, support for the morality of lying for the “greater good” can be found in an old philosophical conundrum, presented by Benjamin Constant to Immanuel Kant in 1797. Kant basically believed that lying was always wrong, and so Constant challenged him with a scenario where a murderer is searching for his victim. The murderer arrives at the house of the victim’s friend and asks the friend where the victim is hiding. Does the friend have a duty to speak truthfully to the murderer? Constant argues that he does not–
The concept of duty is inseparable from the concept of right. A duty is that on the part of one being which corresponds to the rights of another. Where there are no rights, there are no duties. To tell the truth is therefore a duty, but only to one who has a right to the truth. But no one has a right to a truth that will harm others.
And so where the government is deliberately harming asylum seekers by lying about them in order to send them away, how can we say that asylum seekers have a duty to tell the truth to that same government?
For me, this is a difficult and uncomfortable question. But despite it all–the unfair laws (which long pre-date this Administration), the torrent of false claims about asylum seekers, the assault on due process–I still think lying is morally wrong in an asylum case. Here’s why: First, for me, the idea of asylum is somehow sacred. Our country is offering protection to strangers who need our help. We ask for nothing in return. In this respect, and despite a realpolitik element, asylum represents our highest ideals. And these are not just American ideals. The idea of welcoming the stranger is mentioned again and again in the Bible. Because I view asylum this way, the idea of lying to win one’s case feels like the violation of a sacred trust or covenant, and I see that as morally wrong.
Also, lying to win asylum further erodes the system and makes it harder for other asylum seekers to receive the protection they need. It is bad enough that the Trump Administration is systematically trying to dismantle our asylum system. When asylum seekers lie, they unwittingly aid in this effort and amplify it, and I believe that this is morally wrong.
Finally, I do not believe that two wrongs make a right. Just because the Administration is debasing itself by lying to harm asylum seekers, I do not think asylum seekers should do the same. I do not think it is moral to lower one’s own standards simply because another person is acting immorally, or even when we are operating in a system that is moving towards moral bankruptcy.
Having said all this, I recognize that I am far less affected by “the system” than the people seeking asylum. I have less to gain and less to lose. Each of us–asylum applicants, attorneys, decision-makers–has to make our own decision based on our own moral imperatives and our own needs. The President and his Administration have made their choice. They are lying to further their agenda. My hope is that asylum seekers and the asylum system can survive their lies while keeping our own morality intact.
There are now more than 1,000,000 people with cases pending before our nation’s Immigration Courts. The culmination of this process is the Individual Hearing, where the Immigration Judge (“IJ”) usually decides whether the applicant gets asylum, some other relief, or is ordered deported from our country. For asylum seekers, the Individual Hearing can be stressful and frightening. Here, we will discuss what to expect at that hearing. In prior posts, I discussed the Master Calendar Hearing, and how to prepare for the Individual Hearing.
Before we get to the substance of what happens at the Individual Hearing, I should mention that there are detained and non-detained hearings. A detained hearing is similar to a non-detained hearing in terms of the order of events, but sometimes the IJ and the alien are in different locations, and so cases are done by video (non-detained cases can also be done by video, but this is less common). These video hearings are more difficult to litigate, in terms of looking at documents, hearing each other talk, reading non-verbal cues, empathizing with the applicant, etc. Detained hearings are more difficult to prepare for, as it is difficult to gather evidence and get ready for your case when you are in jail.
Also, of course, different IJs have different styles (in Immigration Court, IJs decide the case – there are no juries). Some IJs ask a lot of questions; others ask no questions. Some are professional and respectful; others, not so much. It is helpful to know something about your IJ before the court hearing, so you can have an idea about what to expect. Statistics about asylum grant rates for many IJs can be found at TRAC Immigration.
Also, if the Judge makes a joke, don’t forget to laugh. Even if you have no idea what the heck he is talking about.
Finally, as I discussed previously, many cases are won or lost before the trial even begins, and so how well the case is prepared will likely affect how the Individual Hearing proceeds.
As for the Individual Hearing itself, it begins when the IJ arrives in court. Everyone stands up for the Judge. Once everyone sits, the hearing usually begins with a conversation between the IJ and the lawyers (assuming the alien has a lawyer). During this discussion, the parties may try to narrow the issues that need to be discussed. Perhaps there are some areas of agreement, and it is helpful to know this in advance. Also, in some cases, the IJ will not need to hear testimony about the entire case – maybe the alien will only need to testify about part of her story.
At the beginning of the hearing, the IJ will ask what “relief” you are seeking. This can be asylum, Withholding of Removal, relief under the Torture Convention, Cancellation of Removal, Adjustment of Status, Voluntary Departure, and/or something else. The IJ will also mark the evidence and hear any objections. So if you submitted evidence, and the DHS attorney objects to that evidence, the Judge must decide whether or not to admit that evidence into the record, and how much “weight” to give to that piece of evidence (some evidence is considered more reliable than other evidence and hence receives more “weight” in terms of how much it influences the IJ’s decision). At this time, the IJ will also ask whether there are any changes to the form I-589. You can update your form and make any corrections. Once the form is updated, the IJ will have you sign the form under penalty of perjury. You will also be “sworn in” under the penalty of perjury. This is basically a promise to tell the truth, and if it is found that you are not telling the truth, there are potential immigration and criminal consequences. If there is an interpreter in your case, the interpreter will also be sworn in.
If you have brought any witnesses to court, they will typically be asked to wait outside, so they cannot hear your testimony. That way, their testimony can be compared to your testimony. If there are inconsistencies between your witness and you, it could cause the IJ to think you are not telling the truth. For this reason, it is important that the witnesses are prepared in advance, and that you and your witnesses are on the same page. Keep in mind that different people may have different memories of the same event, and even if they are both telling the truth, there is still a risk that the two accounts will not be consistent. For this reason, it is important to go over each person’s testimony prior to the court hearing.
Normally, the “respondent” (the alien who is the subject of the court proceeding) testifies first. This usually begins with your attorney asking questions (assuming again that you have an attorney). This is called the “direct examination,” and usually involves you telling your whole story. Once the testimony is done, the DHS attorney asks questions. This is called “cross examination.” During cross exam, the DHS attorney will often try to test your credibility. There are different ways to do this: Asking about prior inconsistencies in other applications (including any visa applications), at the Asylum Office, or during the credible fear interview; asking about testimony that seems implausible or inconsistent with country conditions; asking about documents or evidence that seems fraudulent. Hopefully, as you prepare your case, you will think about some possible avenues for cross examination and how you might respond. Afterwards, your attorney has an opportunity to ask some additional questions, based on what happened during cross examination. This is called “re-direct.” The IJ can interject with questions at any time.
During your testimony (and for your witnesses’ testimony), remember that if you do not understand a question, ask for clarification. Do not answer a question that you do not understand. If you do not know the answer to a question, or you do not remember the answer, just say that you don’t know or you don’t remember; don’t guess. If you need a moment to collect your thoughts, ask for that. If you need a break, ask for that too. If you have an interpreter and there is a problem with the interpretation, don’t be afraid to raise that issue as well (especially if you do not have a lawyer or your lawyer does not understand the language). Also, on cross exam, the DHS attorney often asks yes-or-no questions, and will sometimes insist on a yes-or-no answer (sometimes, the IJ will do this as well). If you cannot answer the question using a yes or no, try to explain that. If you feel that you have no choice but to answer yes or no, you should at least alert the IJ that you have more to say. On re-direct, you will have an opportunity to elaborate on your answer. Remember to always be polite and don’t lose your cool.
After your testimony is finished, it will be your witnesses’ turn. Sometimes, the IJ will accept a “proffer” of a witness’s testimony (assuming both your lawyer and DHS agree). This means that the IJ will accept the testimony as recounted in the witness’s letter (witnesses generally submit a statement in advance of trial), and that the witness will not actually need to testify. A proffer can be beneficial to your case (since it eliminates the possibility of inconsistent testimony), but it can also be a disadvantage (since the IJ will not hear the witness’s testimony, which would presumably support your asylum claim).
After all the testimony is done, most–but not all–IJs allow the lawyers to make closing arguments. This is an opportunity for the lawyers to explain why they think you should win (or, for the DHS lawyer, lose) your case. Some IJs prefer to have a discussion at the end of testimony, to see whether there is agreement about resolution of the case.
Finally, the IJ will either make an oral decision, reserve decision for later, or inform the parties about the next step (in some cases, the IJ needs more information from the parties before she can make a decision). In the majority of of cases, the IJ issues an oral decision that same day.
If you do not like the IJ’s decision, you can “reserve” appeal. If the DHS attorney does not like the IJ’s decision, DHS can reserve appeal. If you (or DHS) reserve appeal, you have 30 days to file the appeal using form EOIR-26. The IJ should give you the deadline for the appeal. If you or DHS appeal, the appeal will be resolved by the Board of Immigration Appeals. But that is a story for another day.
The key to winning an asylum case in Immigration Court is preparation. I’d venture that the majority of asylum cases are won or lost before the applicant arrives in court for the final hearing. If the case and the applicant are well prepared, the chances for success are greatly improved. If the case and the applicant are not well prepared, the likelihood of winning is much reduced. So how do you prepare for an asylum hearing in Immigration Court?
First, you have to determine whether you are eligible for any relief. If you fear return to your country on account of your race, religion, nationality, political opinion or particular social group, you may be eligible for asylum or Withholding of Removal. If you fear torture, you could be eligible for relief under the United Nations Convention Against Torture. Besides these types of humanitarian protection, there are a number of other applications that might help you avoid deportation: Cancellation of Removal, adjustment of status based on a family relationship or a job, a T or U visa for certain victims of crimes, the semi-mythical S visa for certain cooperating witnesses, the Special Immigrant Juvenile visa, to name the most common. How do you know what relief you might be eligible for? Your best bet is to talk to a lawyer, but you can also do your own research.
Pear
Assuming you qualify for relief, you normally have to inform the Immigration Judge and submit all necessary forms at the Master Calendar Hearing (“MCH”). In many cases, if you do not submit all applications for relief in advance of the Individual Hearing, you forfeit those opportunities for relief. Be aware that some applications for relief require a fee (asylum does not require a fee), and so make sure to pay the fee well in advance of the Individual Hearing.
As the Individual Hearing approaches, you need to file all the necessary documents with the Immigration Court. This includes all evidence, a witness list, and a legal brief. The documents must be filed on time. The default rule (from the Immigration Court Practice Manual) is that evidence should be filed at least 15 days prior to the Individual Hearing, but some Judges have their own rules and require documents earlier than that (the Judge should inform you about this at the MCH). One copy of the evidence goes to the Court and one copy goes to the local Office of the Principal Legal Advisor (the prosecutor).
The evidence normally consists of the I-589 asylum form (and/or forms for any other applications for relief), an affidavit, and supporting documents. Any documents not in English must be properly translated. You can read more about what evidence is helpful here.
Courts also require a witness list, which is a list of people who will come to Court to provide testimony in your case. Anyone who plans to appear as a witness must provide a letter indicating what they know about your situation. There are benefits and risks to any witness, and you need to think carefully about whether a particular witness will be helpful for your case (and of course, if you have a lawyer, the lawyer should explore this with you). All witnesses need to be prepared for their testimony, just as the applicant herself needs to be prepared (see below).
Also, for most cases, it is a good idea to submit a brief detailing the legal theory of the case. This is especially important where the case involves a particular social group or PSG (the BIA requires applicants to specifically articulate any PSG). Even in cases where PSG is not an issue, it is important to explain the legal posture of the case and any issues that may be relevant (one year filing bar, nexus, persecutor bar, firm resettlement, criminal issues, etc.).
In addition, if your case was referred to Court by the Asylum Office, you should think about why. Are there inconsistencies or errors that need to be addressed? Maybe this requires a new affidavit or additional evidence. Did you fail to show that you suffered past persecution or that you have a well-founded fear of future persecution? Maybe you need more evidence or a stronger legal argument. While the Immigration Judge reviews the case de novo (meaning, the IJ makes her own decision), remember that the Asylum Officer’s notes can be admitted to impeach your credibility. As you prepare for Court, you should think about what was said and submitted at the Asylum Interview, and determine whether that requires any additional evidence or testimony.
Pre-Pear
Before the Individual Hearing, make sure you and any of your dependents have completed their biometrics (fingerprints) appointment. If your case has been referred from the Asylum Office, this will already have been done (assuming you showed up for your biometrics appointment prior to your asylum interview). If not, you can request a biometrics appointment. This is important, and if you forget to do it (which is easy), it could result in the case being delayed or denied.
As the Court date approaches, it is important to practice for the hearing. How do you want to present your case? What questions might be asked of you? What are the weak points in the case and how will you discuss those? It is very important to think about these issues in advance. Judges and Trial Attorneys are good at finding the weaknesses in a case and asking about them, and failure to prepare ahead of time may result in the case being denied. In our office, we do two practice sessions with the client – the first about a week before the trial and the second a day or two before (this practice session is an much for the attorney’s benefit as the client’s).
Finally, prior to the hearing, it is a good idea to talk to the DHS Attorney (normally, your lawyer does this). It is not always easy to reach these attorneys, and they often do not return calls. However, at the beginning of the hearing, it is common for the Judge to ask whether the parties have talked, and so it is helpful to at least have tried to communicate with the government lawyer. Assuming you can talk to the lawyer in advance, you can potentially narrow the issues and have a better sense of what to expect at the hearing.
So that’s about it for preparation. In a future post, I will discuss what happens at the Individual Hearing.
The Trump Administration has been doing everything it can to block asylum seekers from reaching our shores (everything, that is, except working with Congress to reform the law). Many of the Administration’s policies are legally questionable (to put it mildly), and have been challenged in federal court. Now, in an extraordinary move, a union that represents Asylum Officers has filed an amicus brief opposing a policy of President Trump (their boss).
The Administration policy at issue is officially known as the Migrant Protection Protocols or MPP. It is also called the “Remain in Mexico” plan, and it requires many asylum seekers entering the United States from Mexico illegally or without proper documentation to be returned to Mexico for the duration of their immigration proceeding. As a result of the MPP, over 12,000 people have been forced to wait in Mexico while their cases are adjudicated in the U.S.
Acting USCIS Director Ken Cuccinelli responds to the question, “How many asylum seekers will be interviewed this year under the MPP?”
The problems with the MPP are too numerous to list here. But for starters, Mexico is not a safe place for many asylum seekers, especially women, children, and sexual and ethnic minorities. Another problem is that asylum applicants stuck in Mexico have less access to legal assistance and less due process of law. Of course, all this is by design, as the MPP is clearly meant to deter people from seeking asylum by punishing those who have the temerity to ask us for help.
Apparently, the MPP was also too much for many Asylum Officers, who are charged with evaluating asylum claims made by people arriving at our Southern border. Through their union, Local 1924, a group of Officers filed an “amicus” or “friend of the court” brief supporting a lawsuit that seeks to block the MPP. Amicus briefs must include a “statement of interest,” explaining why the filing party has an interest in the matter. Here is what Local 1924 had to say:
Local 1924 has a special interest in this case because, as the collective bargaining unit of federal government employees who are at the forefront of interviewing and adjudicating the claims of individuals seeking asylum in the United States, Local 1924’s members have first-hand knowledge as to whether the MPP assures the United States’ compliance with international and domestic laws concerning due process for asylum seekers and the protection of refugees and whether the MPP is necessary to deal with the flow of migrants through our Nation’s Southern Border.
There are two main reasons that Local 1924 objects to the MPP:
In the course of waiting [in Mexico] for a determination of their asylum applications, many [asylum seekers] will face persecution because of their race, religion, nationality, political opinion, or membership in a particular social group. By forcing a vulnerable population to return to a hostile territory where they are likely to face persecution, the MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.
Moreover, the MPP is entirely unnecessary, as our immigration system has the foundation and agility necessary to deal with the flow of migrants through our Southern Border. The system has been tested time and again, and it is fully capable—with additional resources where appropriate–of efficiently processing asylum claims… The MPP, contrary to the Administration’s claim, does nothing to streamline the process, but instead increases the burdens on our immigration courts and makes the system more inefficient.
In short, the officers charged with enforcing the asylum law at the Southern border think that the MPP violates the law and endangers people who our country is obliged (under international and domestic law) to protect.
Predictably, the Acting Director of USCIS (which oversees the Asylum Division), Ken Cuccinelli, issued a statement “blasting” the amicus brief:
Union leadership continues to play games while the border crisis intensifies. Lives are being lost, detention facilities are unsustainably overcrowded, and illegal aliens with frivolous claims continue to overwhelm our system. The fact of the matter remains that our officers signed up to protect the truly vulnerable, our asylum system, and most importantly, our country. A cheap political stunt helps no one and certainly does not help to contain this crisis.
In his statement, Mr. Cuccinelli fails to address any of the substantive claims raised in the amicus brief (shocking, I know). Instead, he falls back on the old talking point that frivolous asylum claims are somehow to blame for the crisis at the border. Of course, there is little evidence to support this position, but as a climate-change denier, Mr. Cuccinelli is obviously not beholden to concepts such as evidence or common sense (or common decency).
In my experience, most Asylum Officers take their jobs very seriously. They recognize their duty to uphold the asylum law and to grant or deny protection where appropriate. They also recognize their duty to protect the United States. This sense of responsibility to country stands in sharp contrast to the arrogance of the Trump Administration and the USCIS Acting Director, who seem to think they can run roughshod over our nation’s laws and force government employees to do the same. For this reason, I think the amicus brief is significant: It stands as an expression of independence of Asylum Officers (or at least those in Local 1924) to make decisions in accordance with the law, even when their higher-ups demand that they do otherwise.
I hope Asylum Officers and Immigration Judges around the country will take note. I hope that they will read the amicus brief, particularly the recitation of our country’s proud (but imperfect) history of protecting people fleeing harm. And most of all, I hope Officers and Judges will continue to follow the law, even when the political leadership pushes them to ignore it. Following and enforcing the law is the ultimate “rebellion” against the current Administration’s lawlessness. Our asylum system, our country’s moral integrity, and the lives of asylum seekers all depend on it.
Moving to another country can be challenging and confusing. Navigating that new country’s legal system can be downright maddening. As an asylum attorney, I’ve observed my clients’ behavior in Immigration Court, the Asylum Office, and during USCIS interviews, and I’ve accumulated a list of do’s and don’ts (mostly don’ts) for interacting with immigration officials. So, in no particular order, here’s what to do and not do, when you appear for your hearing or interview–
Do turn off your cell phone (don’t put it on “silent” or “vibrate” – turn it off)
Do dress respectfully
Do not wear a hat (unless it is religious garb, like a hijab or kippah)
Do not engage in fake emotional outbursts, like crying or screaming uncontrollably – it is not culturally appropriate in American, and it will potentially make the decision-maker uncomfortable, embarrassed or angry (you can express your emotions – just don’t be fake)
Don’t wear perfume or cologne
Do do these do’s or you’ll be due for deep doo doo (times deux).
Don’t answer a question when you do not know the answer – Don’t guess!
Do take a bath beforehand
Don’t tell the decision-maker that she is good-looking, smart, professional, well-dressed, brilliant, funny, Christ-like or anything else that resembles kissing her ass – this will probably only aggravate and/or creep out the person you are trying to flatter
Do tell the truth
Don’t cry and beg for a good decision
Do turn off your cell phone (I mean it!)
Do use the bathroom before your interview or hearing, so you do not have to interrupt proceedings to run to the potty
Do not lose your temper with or be disrespectful to the Immigration Judge, DHS attorney, Asylum Officer, interpreter, clerk, security guard or anyone else involved in the process
Do not chew gum (or tobacco, toothpicks or anything else)
Don’t bring small children to the court or the interview unless they are required to be present
Do bring all your original documents with you (all passports, birth certificates, marriage certificates, divorce documents, school and work records, military records, medical documents, death certificates, police reports, ID cards, photos, witnesses letters, etc. – in short, if you submitted a copy of it, bring the original if you have it)
Do show up on time (or better yet, show up early)
Don’t answer questions that you do not understand (just say, “Sorry, I do not understand the question”)
Don’t take advice from friends or family members if they do not know what they are talking about
Do be friendly and make eye contact
Don’t avoid responsibility for bad things you did, such as criminal conduct or prior misrepresentations – if you take responsibility, express remorse, apologize, explain how you have changed, and show that you will not repeat the bad behavior, you are most likely to overcome the problem (of course, if you have a criminal or misrepresentation issue, you should talk to a lawyer for guidance)
Do get a good night sleep beforehand (even though this can be difficult)
Do listen carefully and respond to the question that is asked; not to the question that you wanted them to ask
Do not try to avoid the questions or change the subject
Don’t interrupt other people, especially Judges, Trial Attorneys, and Asylum Officers
Don’t get flustered – if you are losing your cool, take a breath, or ask for a moment to compose yourself
Don’t leave your cell phone on – shut it off! (did I already mention this?)
Do stand up when the Judge enters the courtroom
Do not repeat the entire oath after the Judge or Asylum Officer asks whether you swear or affirm to tell the truth – just say, “I do” or “yes”
Do speak slowly and clearly, and, if you are using an interpreter, break up long answers into shorter bits so the interpreter can accurately translate everything you say
Do not bring weapons or other prohibited items to the courtroom or Asylum Office
Do not roll your eyes or use other disrespectful body language
Do answer questions verbally – you cannot nod your head for “yes” or “no”
Do sit up straight
Do not plead “Not guilty!” at the Master Calendar Hearing
Do think before you speak – Why are you being asked this question? What might the questioner have in mind?
Don’t answer a question in court if your attorney objects to that question – let the Judge make a decision on the objection. Depending on how the Judge rules, you may not be required to answer the question
Do not forget where you are and get too comfortable/familiar – remember, you are being judged (literally)
Do not use curse words or rude language, unless it is part of the story you are telling
Do not refer to the Immigration Judge as “Your Lordship,” “Your Majesty,” “Your Highness,” “Oh Great One,” “Your Holiness,” “He Who Must Not Be Named,” or any other unusual sobriquet – in the U.S., we say “Your Honor”
Do not refer to the Asylum Officer by any weird sobriquets either – you can call the officer “Officer” or “Sir” or “Ma’am”
Do review your case before any hearing, and think in advance about how to respond to difficult questions
And most important of all, Do pay your lawyer (especially if you are my client!)
So that’s about it. This list is not comprehensive, of course, and so if you have any suggestions, please let us know. And in case I forgot to mention it: Turn off your cell phone!
Last month, the Asylum Division released the most recent data about the affirmative asylum backlog. The short story is that the nationwide backlog continues to grow, albeit quite slowly. Also, the growth is not evenly distributed among the various Asylum Offices–some are seeing their backlogs get larger; others are seeing their backlogs shrink. Here, we’ll take a closer look at what is happening in terms of the backlog, and also review some of the (surprising) answers that the Asylum Division gave to questions posed at the quarterly stakeholders meeting.
First, some numbers. In February 2019, the nationwide backlog was 326,767 cases; in March, it was 327,984, meaning that the backlog grew at a rate of less than 0.4%, which is pretty insignificant. However, when we break down the growth rate by Asylum Office, we see a different picture. Some offices had growing backlogs: Arlington (+1.5%), Boston (+0.2%), Houston (+1.8%), Miami (+0.8%), New York (+0.2%), New Orleans (+4.1%), and San Francisco (+0.5%). Other offices had shrinking backlogs: Chicago (-0.2%), Los Angeles (-1.3%), and Newark (-1.9%).
Typical reaction when an asylum seeker learns about the backlog.
What these numbers mean for asylum seekers is not entirely clear. For people in the backlog, only three offices seem to be making any headway at all, and so if your case is stuck in Chicago, LA or Newark, there is at least some hope that you will eventually receive an interview. Backlogged applicants in the other offices are unlikely to receive an interview any time soon, unless they can expedite their case.
For new applicants, my suspicion is that offices with shrinking backlogs are more likely to interview newly-filed cases. For example, most of our cases are filed in three offices: Arlington, Chicago, and Newark. Arlington has a growing backlog, and our experience there is that a minority of our newly filed (LIFO) cases receive interviews. In Chicago and Newark, which both have shrinking backlogs, our newly-filed cases all seem to receive interviews.
So if you plan to file for asylum, and want to maximize the chance for a fast interview, are you better off filing in Chicago, LA or Newark? Maybe. But one issue is that USCIS moves resources from office to office, and so a fast office today might be a slow office tomorrow. An example of this is Los Angeles. For years, LA was the office with the largest asylum backlog. Then, at some point, headquarters sent some help (or made some sort of change), and now LA is one of the “fast” offices. At the Asylum Division Quarterly Stakeholder meeting last month, we asked about the inequitable delays, and the leadership told us that in summer, they re-evaluate how resources are distributed. So maybe there will be changes in the coming months, and this could affect how the local offices process their cases.
What about grant rates at the different offices? There are different ways to calculate grant rates, and so to some degree, whether a particular asylum office is “easy” depends on how you crunch the numbers. I prefer to factor out “no shows” for obvious reasons. I also factor out one-year bar cases, which is arguably a bad idea, and cases referred without an interview. In other words, I want to know the grant rate for cases filed on time, where the person shows up for his interview. Using that method, the overall grant rate for the U.S. for March 2019 (the most recent month available) is 47.7% (had I not factored out the cases I don’t like, the grant rate would be much lower: 27.5%). Looking at grant rates for each office, we have: Arlington (44.0%), Boston (37.8%), Chicago (55.6%), Houston (44.7%), Los Angeles (68.3%), Miami (25.5%), Newark (43.1%), New York (23.7%), New Orleans (68.3%), and San Francisco (69.3%).
While I think there is some value to these numbers, it is important to remember that different offices serve different populations, and some populations are more likely to be denied than others. For example, though many Central American asylum seekers face severe danger, they often have a hard time winning asylum because the harm they typically face does not easily fit within a protected category under the asylum statute. For this reason, an office with many Central American cases might have a lower grant rate than an office that serves a different population. Put another way, a strong case is likely to win regardless of the office where you file. Even so, when you have such a wide range of approval rates, it’s hard to argue that a person is not better off filing in LA, San Francisco or New Orleans, as opposed to Miami or New York.
So that’s more-or-less where we are in terms of the backlog and asylum grant rates, but there is other news from the Asylum Division as well, including about the LIFO system itself. Here, the Asylum Division is claiming a win: “Since the adoption of the LIFO scheduling policy, the Asylum Division has seen an approximately 30% decrease in receipts [i.e., newly-filed asylum cases].” The theory being that frivolous asylum seekers, who just want a work permit, are deterred from filing by the LIFO system. I don’t doubt that the number of asylum seekers has dropped since January 2018, when LIFO went into effect, but I am not convinced that LIFO gets credit (or blame) for this. There could be many reasons for the down turn, including normal fluctuations in applications, the hostile environment for asylum seekers, greater difficulty in obtaining a U.S. visa, etc. However, given that the Asylum Division views LIFO as contributing to a reduction in applications, I would not expect a change in that policy any time soon.
Also at the Stakeholders meeting, the Asylum Division informed us that, between October 2018 and March 2019, “approximately 70 percent of asylum office final decisions were made within two weeks of the completed interview.” I’m a bit more skeptical about this claim. At least I do not see it for my clients, who usually wait months (at least) for a decision. Admittedly, most of my clients are not typical asylum seekers, who come from Latin America and China, and that may skew my perspective (many of my clients come from Muslim countries, which seem to require longer background checks).
One final point: There have been rumors that the Asylum Division is terminating asylum grants for people from Ethiopia due to improved country conditions. In response to a question on this point, the Asylum Division states–
The Asylum Division initiates termination review when we receive person specific evidence that an individual asylee may be subject to termination of asylum status for any of the applicable grounds under 8 C.F.R. § 208.24. We have not issued any policy memos/directives/other information regarding the termination of asylum status based on the individual no longer having a well-founded fear of persecution due to changed country conditions in the individual’s country of nationality or last habitual residence.
In other words, there is no blanket policy to terminate asylum for Ethiopians. Whether this means that Ethiopian asylees are safe, I am not sure, but at least there is no general policy to terminate asylum in such cases.
So that’s the latest from the Asylum Division. If the recent agreement with Mexico blocks applicants from coming here, we might see resources moving from the border to the backlog, which could cause things to speed up. Only time will tell, and if there is news at the next Quarterly Meeting, I will try to post it here.
Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).
Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?
Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.
I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.
Judge Denise Slavin
I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.
I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.
I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.
Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?
Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.
As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.
I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.
Asylumist: What about lawyers who are bad actors, and who violate the rules?
Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.
Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?
Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.
As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.
Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.
Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?
Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.
As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.
Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?
Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.
Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.
The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.
In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.
Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.
Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?
Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.
As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.
Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.
The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.
These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.
Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.
The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.
Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.
Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?
Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.
The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.
Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.
Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.
Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.
The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.
Asylumist: How would it help if Immigration Courts became Article I courts?
Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.
There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.
If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.
Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.
I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.
EOIR has released a new “Myths vs. Facts” brochure.
This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:
Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more. Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.
Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream. Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.
Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS. Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!
Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget. Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.
Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration. Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…
So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?
If you look at the most recent statistics from the Asylum Division, the likelihood of receiving asylum affirmatively is only about 27%, nation-wide. However, if you remove people from the mix who filed late, or who failed to appear for their interviews, the situation is better: Nearly half of such cases (49%) were approved.
That’s the nation-wide picture, but when we look at data for the various Asylum Offices, things become less clear. Different Asylum Offices have very different denial rates for one-year bar cases (asylum seekers are required to file for asylum within one year of arriving in the United States or to meet an exception to the one-year rule; otherwise, they are barred from receiving asylum). The table below shows the likelihood that a particular Asylum Office will deny (or more politely, “refer”) an application for failure to timely file (the chart excludes cases where the applicant failed to appear for an interview):
Asylum Office
Percentage of Cases Referred to Court for Failing to File Within One Year of Arrival
Arlington
34.2%
Boston
52.9%
Chicago
13.2%
Houston
13.8%
Los Angeles
16.8%
Miami
40.3%
Newark
33.9%
New York
53.6%
New Orleans
27.3%
San Francisco
20.6%
United States
30.6%
Why should the different offices be so different in terms of late-filing referrals? It seems to me that there are two possible explanations, broadly speaking: Either the Asylum Offices are responsible for the disparity, or the asylum seekers themselves are responsible.
Unless you have a time machine, it’s best to file asylum before the one-year deadline.
The first possibility is that certain Asylum Offices are more aggressive than others about enforcing the one-year bar. I know this is the case with Immigration Judges. I am thinking of two IJs in my local court (two of my favorite IJs, by the way). I have presented several one-year bar cases to these judges. One almost invariably denies the asylum application based on the late filing (though in my cases, he granted other, lesser relief); the other looks to the “spirit” of the rule, and as long as the applicant did not have a bad intention (for example, to commit fraud), he usually excuses the late filing. It’s easier to see how this could happen with individual judges, rather than as an office-wide policy, but I suppose this is one possible explanation for the variability between Asylum Offices. If this is the correct explanation, then it makes sense for late filers to choose more friendly offices, such as Chicago or Houston, to file their cases (meaning, such people would have to live in the jurisdiction of these offices).
The other possible explanation is that the different offices are receiving different types of cases. Maybe asylum seekers in New York are too busy or too ill-informed to file their cases on time, while those in Houston have more free time, or are just more conscientious. To me, this seems a bit far-fetched (though I guess New Yorkers are pretty busy). Or maybe it has to do with the different populations served by each office. Maybe–for example–Chinese applicants are more likely to file within one year of arrival, since the Chinese community is well-aware of the one-year rule. In contrast, perhaps Central American applicants tend to arrive in the U.S. without an initial intention to seek asylum, but then decide later that they cannot return home, and in this way, they run afoul of the one-year bar. If LA has more Chinese applicants and New York has more Central Americans, perhaps this could explain the disparity. If (and its a big if) this explanation is correct, then it really doesn’t matter where you apply for asylum, as the different Asylum Offices are not responsible for the uneven one-year denial rates.
A third, hybrid explanation is that some Asylum Offices are cherry-picking their cases, and interviewing more one-year bar cases than timely-filed cases. We know, for example, that the Asylum Offices sent letters to asylum applicants who filed after 10 years in the U.S. and offered them an option to skip the interview and go directly to Immigration Court. If some offices, and not others, are deliberately selecting late-filed cases to interview, that could explain the disparity.
Frankly, I do not have much confidence in any of these explanations. But the disparity does exist and the fact is, some Asylum Offices are significantly more likely than others to deny asylum based on the one-year bar. So what can you do with this data? Does it mean that if you are filing after the one-year deadline, you should avoid Boston and New York, and instead file in Chicago, Houston or LA?
Given that it is difficult to draw a firm conclusion from the data, and given the severe consequences of filing late, the simple answer is to avoid the problem altogether by filing your asylum application on time. For those who miss the one-year deadline, it is important to prepare an explanation (with evidence) about why you filed late (I wrote about that here). This advice applies regardless of which office has your case. But I suppose the question here is: If you are filing late, should you move to a jurisdiction with an “easier” Asylum Office? (And remember, if you want your case heard by a certain office, you have to live within the jurisdiction of that office–you can check which office will adjudicate your case here).
I hate giving advice about where a person should live, but looking at the available data, it is impossible to say that a late-filer is not better off in one of the “easier” offices, like Chicago, Houston, LA or San Francisco. Obviously, there are other factors to consider–most people have to live where they have family support or a job. Also, in some instances, the one-year bar is easily overcome (for people who are still in status, for example) and so there is no reason to worry about which office has your case. But for those with more difficult one-year bar issues, it may make sense to “forum shop” and move someplace with an Asylum Office that is less likely to deny a late-filed application.
Last week, I attended a meeting about InfoPass for the Asylum Offices. InfoPass is an online system that allows you to make an in-person appointment about your immigration case. It has been in use by USCIS for about 15 years, and now the Asylum Offices are debuting their own version of the scheduling tool. The system is operational in my local office (Arlington, Virginia), but it is not yet available nationwide. Here, I want to talk about why the Asylum Offices are implementing InfoPass and what it will do. I also want to offer some constructive criticism (or, as we say in Yiddish, I want to kvetch).
There seems to be a couple main reasons why the Asylum Offices are adopting InfoPass. First, they want to be better prepared when people show up for an inquiry. With the current walk-in system, the Asylum Office (“AO”) does not know who is coming in or why, and so they cannot prepare in advance for the meeting. InfoPass will give the AO a heads-up, which will (theoretically) allow them to pull the file, and possibly have an answer when the person arrives. Second, InfoPass will reduce the likelihood that the AO will lose documents (a problem at my local office) because they will have the file available when the new documents arrive. Third, the new system will help manage the flow of visitors to the office and reduce wait times. The overall goal is to provide better, more efficient service.
“Well, at least we can make the whole ‘sinking thing’ a bit less unpleasant.”
So what can you do with InfoPass? Once you reach the InfoPass appointment page (and remember, this link is only for the Arlington office), you will see that there are about a dozen different options, from changing your address to changing your lawyer, delivering documents, inquiring about an interview or a decision, asking about the asylum clock or missing receipts, and withdrawing the case. There is also an “other” option for nonconformists. Depending on the reason for the visit, appointment availabilities and the time allotted for your visit will vary. So if you are dropping off documents, you will receive a shorter time slot than if you are inquiring about a delayed decision. If all goes well, when you arrive at your appointment, you will be received by a person who has reviewed your file, and is ready to help you.
Before we turn to the constructive criticism/kvetching, it is important to acknowledge that the Asylum Office is trying to make things better, and they should be commended for that. For me, one take away from the meeting last week is that creating an Asylum Office InfoPass system is really hard. Not only are they building something new and integrating it with existing systems, which is technologically challenging, but they also have to account for the human factor–desperate people trying desperately to talk to a human being. It ain’t easy.
The AO’s efforts are laudable, but I have some concerns about the system as it is currently envisioned.
The first problem is that people who are seeking USCIS InfoPass appointments–as opposed to Asylum Office InfoPass appointments–are filling appointment slots at the AO. During the first day of testing, something like 40 appointments were filled up almost as soon as the system went live. All but one were taken by people who were not asylum seekers, and who were actually seeking appointments with USCIS. The problem is that “regular” InfoPass appointments are almost impossible to get, and so these non-asylum seekers migrated from the regular InfoPass webpage to the AO InfoPass webpage. It doesn’t help that links to both types of InfoPass appointments appear on the same USCIS webpage.
The obvious solution is to limit AO InfoPass appointments to asylum seekers. However, as I understand it, there are technical issues that make it difficult to implement such a system, and so the AO is stuck manually going over the appointment requests to determine whether they are actually for asylum seekers. This seems untenable, and I suspect some technological fix will eventually become necessary. Maybe an interim solution is to put a link to the AO InfoPass webpage on the Asylum Office website, as opposed to the USCIS website. At least that would reduce the likelihood that “regular” InfoPass people would sign up for an AO InfoPass.
Another problem–and this is more for lawyers than for asylum seekers–is that we now need an InfoPass appointment to file documents. While I understand why the AO is requiring this (so they can pull the file in advance and insert the new evidence), it will be a hardship for lawyers. Most cases require the submission of additional documents before the interview. The problem is, we only get about three weeks notice before an interview, and (at least in Arlington) all evidence must be submitted one week prior to the interview. Thus, once we get notice of the interview, we have precious little time to complete the case. Adding a further constraint–such as the need for an appointment to file documents–is going to be very challenging. We often don’t know when the evidence packet will be ready, and so it is difficult to know when to schedule an appointment. Also, it is easier for repeat players, like lawyers, to file documents when they are going to the AO for some other reason. If we have to make extra trips to file documents, we may need to pass the expense on to our clients. This will make it more difficult for asylum seekers to afford legal help.
I expect that most lawyers would rather file documents by mail than make an InfoPass appointment. The problem is that evidence filed this way is more likely to get lost, which could result in the interview being rescheduled.
A third problem is that appointment slots are limited, and I fear that many will be filled by asylum seekers who repeatedly appear at the AO to inquire about their cases. While I understand that people are anxious and want to talk to a human being, without some limitation on the frequency that asylum seekers can appear at the AO, others who need appointments may not be able to get them. One (partial) solution here might be to identify questions that are amenable to telephonic or email responses, and then to contact the person prior to the appointment. The AO is hoping to implement such a system, but probably not anytime soon.
To me, the basic issue is that we need knowable, enforceable rules about InfoPass and about the asylum system in general. I’ve written previously about how the AO could make its webpage more useful. If people were more well-informed, they would have less need for InfoPass.
Based on the meeting last week, I think the AO is aware of these (and other) issues. They are open about the fact that the new InfoPass system is a work in progress, and that it will evolve as they learn more about how it is being used and what people need. While I can’t say I am thrilled about the new document filing system, InfoPass for asylum seekers is otherwise a positive development. Hopefully, the AO will continue to upgrade their systems and respond to the needs of stakeholders. If so, I expect they will improve efficiency and help ease the pain for those who are waiting.
The vast majority of Immigration Judges, DHS attorneys, Asylum Officers, and USCIS officers are professional and respectful. But what if they are not? What do you do then?
First off, I think it is important to understand that the bad officials are a small minority. I’ve been to many interviews and court hearings, and I’ve only ever made one complaint (against a USCIS officer at a Green Card interview). In other words, at least in my experience, government officials in immigration-world are generally pretty good.
Now admittedly, I am a lawyer and I know my clients’ rights and what to expect from “the system.” Pro se (unrepresented) applicants may not receive the same level of respect. They are easier to abuse, and it is more likely that decision-makers will cut corners in cases where the applicant is unable to protect herself.
That said, I am also involved in the BIA Pro Bono Project, where I review a dozen or so unrepresented appeals cases each month. I see the transcript of the Immigration Court case, and I can read how the Immigration Judge and the DHS attorney treated the applicant. While it is fairly common to see Judges and DHS attorneys moving quickly through a pro se hearing, it is also common to see these same officials taking extra time to ensure they are properly adjudicating the case. Once in a while, I see a case where the Judge steamrolled the proceedings to reach a quick decision, but that is the exception. In most cases, even those that were adjudicated quickly, the outcome seems fair, given the available evidence and testimony (one big caveat – many of these pro se cases are not well developed and are lacking in evidence. This is because the cases we review are for individuals who are detained. If these people had access to a lawyer and could better prepare their cases, many—even most—would achieve a better outcome).
The government takes your complaints very seriously.
While outright hostility and rule breaking seem quite rare, adjudicators can sometimes be testy, intimidating or unfriendly. What to do if you have the bad luck of encountering a hostile or impolite decision-maker?
The first thing to do is to remain calm. The demeanor of the decision-maker is often unrelated to the outcome of the case, and we have seen examples where an unfriendly officer issues a positive decision. Remember too that this person is not someone you will likely ever encounter again in your life. All you want from him is a favorable decision. Even if your experience at the interview is unpleasant or frightening, that won’t matter much if the case is granted. If you can keep your cool, answer all the questions, remain polite, and not lose your composure, you increase the likelihood of a good result. Getting angry, or arguing with the decision-maker is unlikely to get you the decision you want.
Second, make your record. This means, if you have something that you think is important to say, you should try to say it. In other words, don’t let an aggressive officer or judge intimidate you into silence. Court hearings and some USCIS interviews are recorded. Asylum Officers are supposed to write down everything you say (and if they do not write down what you say, you can complain to a supervisor). Even if you are ultimately prevented from saying something, if you indicate that you had something else to say, that exchange might be reviewed on appeal (or by a supervisor) and could result in a new trial or interview.
In making your record, you can be explicit. You can say to the judge or officer, “I think you are treating me unfairly because you are not allowing me to talk about X.” Say this politely and calmly, and it might soften the decision-maker’s stance. Say it aggressively, and you will likely harden the decision-maker’s position. I remember one case where the DHS attorney seemed (to me at least) to be taking a very aggressive position towards my asylum-seeker client. Finally, I simply asked (politely) why DHS was so opposed to asylum in the case. The attorney explained his motivation, which helped me better understand the case, and ultimately, the client received asylum.
Third, especially if you are unrepresented, you should write down what happened after the interview or court hearing. When things go wrong, it is important to try to understand what happened, and the more information you have, the better. If you write down what happened immediately, the information is more likely to be accurate. This will be useful if you later want someone else, like a lawyer, to review the case. It is also important if you need to make a formal complaint against the decision-maker.
Finally, if you feel you were subject to unfair treatment, you can make a complaint. Different forums have different procedures for complaining. For example, if you are with an Asylum Officer, you can ask to speak with a supervisor. You do this during the interview itself by telling the Asylum Officer that you would like to speak to a supervisor. For an Immigration Court case, you would typically contact the judge’s supervisor (called the Assistant Chief Immigration Judge) after the court hearing, or–more typically–you would just file an appeal to the Board of Immigration Appeals.
Periodically, I receive decisions that I think are wrong or unfair, but my clients have never been subject to treatment by an Asylum Officer or Judge that warranted a complaint. I did make a complaint once about a USCIS officer. I spoke to the officer’s supervisor immediately after the interview, and then sent a written complaint directly to the supervisor. I do not know whether the officer herself was informed of the complaint (I never saw her again), but I do know that my client’s case was approved in short order.
Most Immigration Judges and Asylum Officers are professional and respectful, and so hopefully, you will never encounter an official who is treating you unfairly. But if you do, keep calm, remain respectful, and politely make the points you need to make. This is the best way to maximize your chances for a positive decision.
Last week, I wrote about my suggestions for a new Asylum Office website. In that post, I gave short shrift to a new development: For affirmative asylum applicants, it is now possible to check your asylum case online at the USCIS website. This development is actually pretty significant, and will be particularly helpful for those who set up an account with USCIS in order to receive automatic case updates.
Here’s how it works: If you filed affirmatively for asylum–meaning, you filed a case with the Asylum Office–you should have received a receipt with an Alien number (a nine-digit number usually starting with 0 or 2) and a receipt number (three letters followed by a 10-digit number; the first letter is “Z”). You can now enter the receipt number into the USCIS Check Case Status web page and obtain information about your case.
I’ve plugged in several of my clients’ receipt numbers to get an idea of how the system works. After you enter the receipt number, you will receive a message about your case. The messages I saw have between one and four paragraphs, depending on the stage of the case.
The USCIS computer team celebrates as their agency enters the 20th Century.
The first paragraph gives information about the status of the case. This is discussed more below.
The second and third paragraphs of the message discuss the “Asylum Clock” and eligibility for an employment authorization document or EAD. In short, once an asylum case is received, the “Clock” starts. After the Clock reaches 150 days, a person may apply for an EAD, but the Clock must reach 180 days in order for USCIS to actually issue the EAD. If a person delays her case (by skipping an appointment, for example), it could cause the Clock to stop. Buried in the middle of the second paragraph is the number of days that have elapsed on your Asylum Clock and a statement about whether your Clock is still running. This is quite helpful, as it is easy to know when to apply for your EAD (on or after day 150, assuming the Clock is still running). One quibble, if I may: It would be nice to see this information more prominently displayed, as it is kind-of hidden in an otherwise boilerplate paragraph.
The final paragraph contains information about what to do if you move (file form AR-11).
There are different messages generated, depending on the status of the case. After the case is filed and received, the message reads, “The next step in your application is an in-person interview. Once your interview is scheduled, you will receive an interview notice in the mail and this case status will change. If you have an attorney or accredited representative on file, this individual will also receive a copy of the interview notice in the mail.” Another quibble: This message appears even if the biometrics (fingerprint and photo) appointment letter has been mailed out. In other words, at least for the case I checked, the system does not indicate that a biometrics letter was sent. Hopefully, USCIS will include this information as it continues to update the online system.
Once the interview is scheduled, the message states, “Your interview has been scheduled. You will receive an interview notice at the mailing address we have on file. If you have listed family members as dependents on your application, you must bring them to your interview. If you cannot communicate effectively in English, you must bring an interpreter. If you have an attorney or accredited representative and come without that representative, we will ask you to sign a form stating you agree to be interviewed without that representative present.” Further down the page, the message indicates that you can reschedule the interview. However, there is no information about how to contact the Asylum Office to reschedule. Such information would be helpful, even if it is only a link to the (woefully inadequate) Asylum Office website (which also does not tell you how to reschedule an appointment). By the way, it seems that the interview message is the same whether it is a first interview or a rescheduled interview.
If the interview has taken place, but there is not yet a decision, the message states, “You completed your interview with USCIS. The time it takes for USCIS to give you a decision after completion of an interview may vary. An officer told you at the end of your interview if you needed to return to the office to pick-up your decision on a specific/scheduled date, or if your decision would be mailed to you.” This same message seems to appear regardless of how long the decision has been pending. For example, I checked one of my long-delayed cases (filed over five years ago!). I suspect that the case is being held up due to a TRIG (Terrorism Related Inadmissibility Grounds) bar–the client was kidnapped and paid money to the bad guys to get released (this is an example of how the TRIG bar treats the victims of terrorism as if they were terrorists). The client was interviewed (about four years ago), but there is still no decision. For this client, I received the same Case Status message as for a client who was interviewed three months ago (and who does not have any TRIG issues).
Once a decision has been made, the message reads, “We reached a decision in your case. You should expect to receive the decision in the mail shortly. You must follow the instructions in your decision letter as to what you should do next.” If the decision was picked up, the message reads, “We reached a decision in your application. You recently picked up this decision at our office. You must follow the instructions in your decision letter as to what you should do next.” Whether the case was granted, denied or referred to Immigration Court, the message was basically the same. In other words, you cannot determine the outcome of the case based on the online message.
I did not have any cases with a pending Notice of Intent to Deny, so I do not know if the online system indicates whether such a letter has been mailed out. I hope it does, as applicant’s only have 16 days to respond to a NOID, so the earlier they know about it, the better.
I also checked an application that was closed. The message states, “We closed your application and notified you of the reason in the decision letter we mailed to the address we have on file for you. You must contact the office that has been handling your application if you believe your application should not have been closed.” Such a message means that the case is no longer with the Asylum Office. In our client’s case, the person had previously been before an Immigration Judge, and the Asylum Office determined that it did not have jurisdiction.
Probably the best part about the new system is that you can set up an account with USCIS so that you receive automatic updates by email or text message. In this way, you will know when to expect your interview notice or decision. And here’s a bonus: If you sign up for Informed Delivery with the U.S. Post Office, you will get a scan of all mail coming to your house, so you will know exactly when your notifications (and all your other mail) are arriving. Informed Delivery is not available everywhere, but you can check the USPS website to see whether you are eligible.
Finally, one last issue: The USCIS website is only in English. There are a limited number of messages that appear when you check your receipt, and so it really shouldn’t be that burdensome to create messages in other languages (Spanish being the most obvious). I am not sure that this is under consideration, but it would be very helpful.
So that’s about it. The new system is a good start, especially if you get automatic updates, but it’s not a substitute for a more informative Asylum Office website, as I discussed last week. Hopefully, USCIS will continue to improve it’s online presence, and continue to improve the process for asylum seekers and everyone else in the system.
