How to Expedite an Asylum Interview–or–Ask and Ye Might Just Receive

by Jason Dzubow

These days, the estimated wait time for an affirmative asylum case is somewhere between eternity and forever. It can best be expressed numerically as ∞. Or maybe as ∞ + 1. In other words, affirmative asylum cases take a long damn time. (OK, to be fair, you can get some idea about the actual wait time here).

Asylum seekcars waiting for their interview.

For some people, this wait is more of a problem than for others. For example, if your spouse and children are outside the United States waiting for you, and especially if they are living in unsafe or unhealthy conditions, the wait can be intolerable. A growing number of people are abandoning their cases simply because they cannot stand the separation. Others are moving to Canada, which apparently has a faster system than we have in the States. The problem is not simply that the wait is long—and the wait is long. The problem is that we cannot know how long the wait will be. Maybe the interview will come in six months; maybe in three years. Maybe the decision will come shortly after the interview; maybe it will take months or years. This unpredictability contributes to the difficulty of waiting for a resolution to the case.

For others people—single people without children or families that are all together here in the U.S.—the wait may be stressful, but it’s far more bearable. For my clients in this position, I advise them to live as if they will win their cases. What else can they do? To live under the constant stress of potential deportation is unhealthy. And the fact is, most of my clients have strong cases, and the likelihood that they will succeed it pretty high. So it is best to live as normally as possible. Find a job, start a business, buy a house or a car, go to school, make friends, get on with life. In the end, if such people need to leave the United States, they will have time to wind down their affairs and sell their belongings. For now, though, if I may quote the late, great Chuck Berry, Live like you wanna live, baby.

But what if you want to try to expedite your case? How can you maximize the chances that the Asylum Office will move your case to the front of the line?

First, before you file to expedite, you need to complete your case. The affidavit must be finished and all the evidence must be organized and properly translated (if necessary). If you expedite a case and the case is not complete, it could result in real problems. For example, I once had a client put himself on a short list without telling me. Then one day, an Asylum Officer called me and said that they wanted to schedule his interview for the following week. The problem was, the evidence was not submitted (or even gathered) and the affidavit was not done. The client insisted on going forward, and so (while I helped with interview preparation), I withdrew from the case. I did not want to remain affiliated with a case that was not properly put together, and I did not want to represent a person who took action on his case without informing me. In general, there is no value in expediting a case only to lose because you are not prepared for the interview, so make sure your case is complete before you try to expedite.

Second, you need a good reason to expedite. Remember, you are asking to jump your case ahead of hundreds–maybe thousands–of people who are also waiting for their asylum interview. Why should the Asylum Office allow you to do that? One common reason is that the applicant has a health problem (physical or mental). If that is your reason, get a letter from the doctor. Also, provide some explanation for how an early resolution of the asylum case might help improve your health situation (for example, maybe you have a health problem that is exacerbated by the stress of a pending case).

Another common reason to expedite (and in my opinion, the most legitimate reason to expedite) is separation from family members, especially if those family members are living under difficult or dangerous circumstances. If an asylum applicant wins her case, she can file petitions to bring her spouse and her minor, unmarried children to the United States. Many people come to the U.S. to seek asylum not for themselves, but because they fear for the safety of their family. Since it is so difficult to get a U.S. visa, it’s common to see asylum seekers who leave their family members behind, in the hope that they can win asylum and bring their family members later. So when the wait for an interview (never mind a decision) is measured in years, that’s a real hardship. For our asylum-seeker clients with pending applications, we have seen cases where their children were attacked in the home country, where family members went into hiding, where children could not attend school or get medical treatment, where families were stuck in third countries, etc., etc., etc. Such problems can form the basis for an expedite request.

To expedite for such a reason, get evidence of the problem. That evidence could be a doctor’s note for a medical problem or an injury, or a police report if a family member was attacked or threatened. It could be a letter from a teacher that the child cannot attend school. It could be letters from the family members themselves explaining the hardship, or letters from other people who know about the problems (for advice on writing a good letter, see this article). Also, sometimes family members receive threat letters or their property is vandalized. Submit copies of such letters or photos of property damage. It is very important to submit letters and evidence in support of the expedite request. Also, remember to include evidence of the family relationship–marriage certificate or birth certificates of children–to show how the person is related to the principal asylum applicant.

There are other reasons to request an expedited interview: Until an asylum case is granted, applicants may not be able to get certain jobs, they cannot qualify for in-state tuition, they face the general stress of not knowing whether they can stay. While these issues can be quite difficult to deal with, I think that they do not compare to the hardships suffered by people separated from family members. Indeed, if I were in charge of the Asylum Division, I would allow expedited interviews only in cases of family separation.

Once your case is complete and you have gathered evidence in support of the expedite request, you need to submit the request and evidence to the Asylum Office. Different offices have different procedures for expediting. You can contact your Asylum Office to ask about the procedure. Contact information for the various Asylum Offices can be found here.

One last point about expediting asylum cases: The system for expediting cases is not well-developed, meaning that sometimes, a strong request will be denied or a weak request will be granted. There definitely seems to be an element of luck involved in the expedite request process. But of course, unless you try to expedite, you can’t get your case expedited. If an initial request is denied, you can gather more evidence and try again (and again). At least in my experience, most–but not all–cases where there was a good reason to expedite were, in fact, expedited.

Besides expediting asylum cases, it is also possible to put your case on the “short list,” which may result in an earlier interview date. You can learn more about that and a few other ideas here.

It is still unclear how changes in the new Administration might affect the speed of asylum cases, but I doubt that the asylum backlog is going away any time soon. In that case, for many people, the only options are to learn to live with the delay or–if there is a good reason–to ask for an expedited interview and then to hope for the best.

Continue reading

533 Comments

The Asylum Office Scheduling Bulletin, Explained (Sort of)

by Jason Dzubow

The purpose of the Asylum Office Scheduling Bulletin (“AOSB”) is to give asylum applicants “an estimate for when they might expect their interview to be scheduled.” At best, though, it’s a very rough estimate. The problem is that the AOSB tells only part of the story, and not even the most important part. Let me explain.

For two bits, Madame Blavatsky can predict when your interview will be. And I'll bet she's more accurate than the AOSB.
For two bits, Madame Blavatsky can predict when your interview will be. And I’ll bet she’s more accurate than the AOSB.

First, what is the AOSB? It is a chart that lists the eight main Asylum Offices. For each office, we can see the filing date of the cases that that office was interviewing in March 2016 (the most recent month listed on the chart). We can also see the two previous months (January and February 2016), which gives some idea about how quickly (or not) the office is moving through its case load.

So, for example, if you look at the Arlington, Virginia Asylum Office, you will see that as of March 2016, it is interviewing people who filed their cases in October 2013. In January and February 2016, Arlington was interviewing people who filed their cases in September 2013. The Chicago office has made the most progress during this period, advancing from May to August 2013. San Francisco is also making steady progress, moving from January to March 2014. Other offices–Houston, Los Angeles, Miami–have moved not at all. But again, this is only part of the story.

One thing the numbers do not tell you is that many of the cases filed prior to December 26, 2014 have already been interviewed. Extrapolating from our own case load, for example, I estimate that in my local Asylum Office (Arlington), approximately 60% of cases filed between October 2013 (the date listed on the AOSB) and December 2014 have already been interviewed. That’s because there was a policy change on December 26, 2014 affecting how the Asylum Offices handle their cases.

What happened is this: In the Good Old Days (and the dates for “the Good Old Days” differ depending on your Asylum Office), asylum cases were filed and interviewed relatively quickly. At my local office, most interviews took place two or three months after filing. Then, starting in 2012 or 2013, and continuing until today, the number of people arriving at our Southern border increased significantly. These migrants are mostly young people from El Salvador, Honduras, and Guatemala. They are fleeing violence and poverty. Some are attempting to reunite with family members already in the United States.

At the border, the migrants ask for asylum. They are generally detained and subject to a credible fear interview (“CFI”). A CFI is an initial evaluation of eligibility for asylum. It is easier to “pass” a CFI than to win asylum, and a large majority of applicants pass the interview. They are then permitted to present their asylum cases to an Immigration Judge or an Asylum Officer. Applicants who do not pass the CFI are deported.

This mass migration (often called “the surge”) affects the affirmative asylum process in a few ways. First, CFIs are conducted by Asylum Officers. These are the same officers who conduct asylum interviews at the various Asylum Offices. If the officers are spending time on CFIs, they obviously are not spending time interviewing applicants at the Asylum Offices. And since most of the people arriving at the Southern border are detained, which costs the U.S. government money, CFIs get priority over the Asylum Officers’ other work. Another way the surge has affected asylum seekers is that the Asylum Offices are prioritizing unaccompanied minors over other applicants. A large percentage of “surge” asylum applicants are minors, and thus their interviews receive priority over “regular” asylum seekers.

When DHS diverted resources away from the Asylum Offices, affirmative cases started piling up. This began in our local office in 2013. About 60% of the case we filed during this period were interviewed in the normal time frame; the other 40% disappeared. The disappeared cases came to be known as “the backlog.”

Once it became apparent that the backlog was not going away, the Asylum Division changed its policy. Starting on December 26, 2014, cases would be interviewed on a first-in/first-out basis. This meant that the Asylum Offices started interviewing the cases in the order received, starting with the cases that had disappeared into the backlog. The AOSB was first published in about July 2015, and since then, there has not been a whole lot of progress. In Arlington, for example, since July 2015, the Asylum Office has only advanced from August to October 2013. Los Angeles is worse. Back in July 2015, they were interviewing cases filed in August 2011. Today, they are still interviewing cases filed in August 2011. Ugh.

The U.S. government has been trying to improve the situation. The Asylum Division has hired more staff, including officers devoted exclusively to CFIs. We now have a system–limited to be sure–to process refugees in-country in Central America and bring them to the U.S. More controversially, we seem to have convinced Mexico to crack down on migrants passing through its territory, and we have prioritized the deportation of “surge” applicants, sometimes at the expense of our international obligations and due process of law. But if the AOSB provides any indication, these efforts have done little to reduce the backlog.

The most important factor impacting movement at the Asylum Offices still appears to be the number of people arriving at the Southern border. As long as these numbers remain high, I am not optimistic that the Asylum Offices will make much progress on the backlog. And the prospects for improvement in the near-term do not look good: Preliminary reports from the border indicate that we can expect more asylum seekers than ever, as migrants seek to enter the U.S. before our increasingly-hostile political climate makes conditions for asylum seekers at the border even more dire.

All these factors, and more (like, how cases and CFIs are distributed between Asylum Offices, how many Asylum Officers are detailed overseas to process refugees, etc.), contribute to movement on the AOSB. Because there are so many unpredictable factors at play, I don’t see how the AOSB can claim any accuracy as a long-term predictor of when an individual asylum interview will be held. To me, it’s kind of like looking at the weather report a month before your vacation. It doesn’t tell you much, but since it’s all you’ve got, you pay attention anyway.

In the end, there is some value to the AOSB: Once you see that your asylum filing date is coming up, you know to prepare for your interview. Also, for applicants, I suppose it is helpful to know that they are not alone in Backlogistan. But as far as predicting interview dates, the AOSB is a mirage in the desert–it may encourage you to keep walking, but it tells you nothing about when you might get your next drink of water.

Continue reading

264 Comments

Must Asylum Lawyers Advise Our Clients to Enter the US “Illegally” Through Mexico?

by Jason Dzubow

Delays in the U.S. affirmative asylum system have just about reached a breaking point. In our office, the longest-waiting applicant recently passed the three-year anniversary of his asylum interview, with no decision in sight. And of course, it’s not just post-interview delays (usually due to security background checks) that are the problem. Anyone interested in asylum knows about the long wait times–anywhere from two to five years–before an applicant even receives her interview.

"At least we're all together."
“At least we’re all together.”

Perhaps these wait times are tolerable for a single person or a family that is together here in the U.S. After all, such applicants (eventually) receive a work permit, which allows them to work, attend school, obtain a driver’s license, and live a relatively normal life (though it is a life overshadowed by the uncertainty and stress of not knowing whether they can remain here).

But what about an asylum seeker who is here, but separated from his spouse and children? Can a person wait for three, four, five years or more to reunite with family members? Will a young child even know her parent, if the only contact she’s had with the parent over the last several years has been via Skype? And won’t such long delays make the process of integration that much more difficult for family members who are “following to join” the principal asylum applicant?

For all these reasons, I believe USCIS should be prioritizing cases of applicants who are separated from their families. Unfortunately, USCIS does prioritize such cases.

There is a possible alternative to waiting for years separated from family: Arrive at a port of entry without a visa and ask for asylum. There are different ways to arrange such an arrival. It can be done legally or illegally. It can be very dangerous or relatively safe. My question here is, what obligation do attorneys have to advise our clients about the different options?

First, though, I want to briefly discuss the various options, starting from the worst and working up to the best (or, more accurately, the least bad).

The most illegal, and most dangerous way to come to the U.S. is by hiring a smuggler and paying him to bring you to the United States. There are all sorts of smugglers, and all sorts of smuggling routes. Some routes are relatively direct; others are circuitous. People die along these smuggling routes. Many others are robbed or raped. The majority seem to get detained in various countries for various periods of time. Some get stranded for months or years. And some are lucky and arrive with few difficulties. The cost of such trips varies widely. I have heard about people paying anywhere from $10,000 to $80,000; South Asian and Chinese migrants tend to pay more than Africans. This route almost always brings the alien to the Southern border, where she can try to enter the U.S. illegally (this has become increasingly difficult and dangerous) or where she can present herself to a U.S. Customs Officer and ask for asylum (this seems to be the more popular path these days).

Another illegal way to come here is to travel by air using a fake visa and/or passport, or the passport and visa of another person. Such documents can be difficult and expensive to obtain for an individual. For a family, the cost and trouble of getting fake documents is probably much greater. Once the alien arrives at the airport, he can present the documents and try to enter the U.S. or he can ask the Customs Officer for asylum.

A final option is to travel legally to Mexico, travel legally to the U.S. border, and inform the Customs Officer that you wish to apply for asylum.

In each case, assuming that she does not manage to pass inspection and enter the United States, the asylum seeker will be detained–maybe for a few hours and maybe for many months. Many asylum seekers who make it that far are ultimately denied asylum and deported (and some remain detained during the entire Immigration Court process).

Given all these risks, it’s clear that the best alternative is to come to the United States with a visa and then seek asylum after you enter the country. The problem, of course, is that it is very difficult to obtain a U.S. visa, especially for nationals of countries that tend to send asylum seekers to the United States, and especially especially for such nationals who want to come here with their spouse and children.

As lawyers, though, we have an ethical obligation to inform our clients of the options and to let them make their own decision. So when a father comes to my office and I explain the delays in the asylum system, and I tell him that he probably won’t see his children again for two, three or more years, and then he asks whether there is any way to bring his children here sooner, what am I to say? I suppose I can tell him about the process to expedite cases, but that process barely works and, at best, it is very unpredictable. I can also advise him to try to get visas for his family members, but we both know that this probably won’t work (and it’s also ethically questionable, since I would be advising the family members to come here on a non-immigrant visa when I know they plan to remain here permanently). But what about the “Mexico option”? Do I have an obligation to suggest that his family members apply for Mexican visas, which may be easier to get than U.S. visas, and then come to the Southern border for asylum?

The more I have considered this path, the more I think I am obligated to tell my clients about it. For one thing, it is entirely legal (yes, the title of this article says that it is “illegal,” but let’s call that a literary flourish to make the subject of the article more clear). If they arrive legally in Mexico, they can travel to the U.S. border and–even though they do not have permission to enter the United States–they can request asylum at the border. Despite misperceptions to the contrary, requesting asylum at border is legal. See INA § 208(a)(1).

Under U.S. law, the “circumvention of orderly refugee procedures” generally does not block a person from obtaining asylum. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). In other words, if a person does not wait for resettlement as a refugee, but instead travels to the U.S. to seek protection, he is not blocked from receiving asylum. Indeed, in my office, we have represented many people who arrived without a visa at the Southern border, and none of them was denied asylum due to the “illegal” entry.

So if a client is here in the U.S., stuck in asylum purgatory, and asks what she can do to bring her spouse and children to the U.S., I suppose I must mention the “Mexico option.” I can’t say I would recommend this option—the spouse and children will likely end up detained—but I do not think this is a decision for me to make. Maybe they are better off in detention, with a chance of release to join their asylum-seeker family member, than in the home country indefinitely separated from that family member and possibly in danger themselves.

As a lawyer, I have an ethical obligation to inform my clients about all the lawful options available to them—even the options I personally do not prefer. The path through Mexico may be an option for some, and asylum seekers have a right to know about it, so that they can make the best decisions for their families.

Continue reading

101 Comments

Some (Unsolicited) Advice for the Asylum Office

by Jason Dzubow

When the backlog began in 2013, no one quite knew what was happening. How long would the problem persist? How would the delays affect asylum seekers? How would the delays affect the integrity of the asylum system?

It's that time of year, when annoying relatives and (marginally less) annoying lawyers, give you advice.
It’s that time of year, when annoying relatives and (marginally less) annoying lawyers, give you advice.

Two-and-a-half years later, we have some sense for what is happening, and the Asylum Division has made some adaptations to the new reality. It probably comes as no surprise that asylum seekers–and their representatives–are not satisfied with the current situation. Hence, I offer here my own ideas for improving the system. The only criteria for the below suggestions is that they do not cost anything (or at least, not much). It would be easy to propose expensive solutions (hire lots more asylum officers!) but in the current climate, I don’t think that is realistic. Anyway, without further ado, here are my humble suggestions to save the world:

Don’t Create Unrealistic Expectations: Most Asylum Officers are nice, and nice people do not like to make other people feel bad. And so what we frequently see is Asylum Officers giving a time frame for the decision. More often than not, this time frame under-estimates the wait time; sometimes, by a lot. As a result, asylum applicants have their expectations raised and then dashed. It would be far better to avoid this altogether. Unless they really know for certain, Asylum Officers should refrain from giving a time frame for the decision. If the decision comes quickly, the applicant will be (hopefully) pleasantly surprised; if it comes slowly, at least there will not have been an expectation of a quick decision.

Distribute Workloads More Evenly: Waiting times between Asylum Offices vary widely. Houston is currently interviewing people who filed their cases in May 2014; Los Angeles is interviewing people who filed their cases in August 2011. On it’s face, it appears that people in LA wait about three years longer than people in Houston. It should be possible to assign cases in a way that reduces this disparity. Much of the delay is due to credible fear interviews, which take place remotely (by video conference or phone). Why can’t these be processed in the faster offices, so that the slower offices can focus on their backlogs? In this way, perhaps wait times could be made more equitable.

Prioritize People Separated from Family Members: It is much easier to tolerate a long delay if you are not separated from your spouse and minor children. The asylum form, I-589, requests information about the applicant’s spouse and children. In cases where the spouse and minor children are outside the U.S., the Asylum Offices should prioritize those cases. It is really intolerable to remain separated from small children for 2, 3, and 4 years, or more. By the time you see your child again, she won’t even know you. Not to mention that in many cases, the family members are living in unsafe conditions. This is by far the worst part of the backlog, and the Asylum Division really should address the problem.

Standardize the Process of Expediting Cases, and Make the Process More Transparent: It is possible to expedite an asylum case. One way to do this is through the “short list.” When an applicant adds his name to the short list, he will be called for an interview if a slot opens up. The short list can be faster than the regular queue. However, short lists open and close, and not all offices have short lists. The Asylum Offices should post information about the short lists on their websites. Perhaps the short lists can be limited to people separated from their family members. At the minimum, each Asylum Office could post on their website whether a short list is available, and whether it is open to new applicants.

It is also possible to expedite a case for emergent reasons (health problems, family members overseas in jeopardy, etc.). However, there are no hard and fast rules related to expediting cases. Each Asylum Office should have a set of rules for expediting, and those rules should be posted on their websites: What are the criteria for expediting a case? What evidence is required? How and when will a decision to expedite be made? Currently, we are in the dark about these questions. The result is that applicants are trying again and again to expedite, which wastes Asylum Office time (and attorney time) and which creates unrealistic expectations about whether a case might be expedited.

Make the EAD Valid for Two Years and Have the Receipt Automatically Extend the Old EAD: Employment Authorization Documents–EADs–are currently valid for one year. There are also delays for people applying for and renewing EADs. The result is that many people see their EAD expire before they receive the new card. This causes them to lose their jobs and their driver’s licenses. If EADs were valid for two years (or longer), it would greatly reduce the problem. Also, USCIS should adopt the same policy for EADs as they have for the I-751: The receipt for the EAD should automatically extend the existing EAD until the new card arrives.

Create a FAQ Page: Tens of thousands of asylum applicants are waiting for their interviews or decisions. Waiting is difficult enough, but waiting in the absence of reliable information is even worse. The Asylum Office Scheduling Bulletin was a good start—at least now we know who is being interviewed today. But why don’t the Asylum Office websites have a link to the Scheduling Bulletin? And why don’t the paper asylum receipts include the Asylum Office website addresses? The little information that is actually available should be made more accessible.

In addition, the Asylum Division should create a FAQ page (Frequently Asked Questions). What has caused the delay? Why are there delays after the interview? How do I inquire about the status of my case? How do I request expedited review? What happens if I move? How do I travel outside the United States? These are common questions, and there really are very few places to find reliable answers, especially for those applicants who cannot afford an attorney.

The benefit of providing reliable information to asylum seekers is hard to underestimate. If I might analogize to my own fear of flying. I hate to fly (which is annoying, since I like to be in other places), and it’s especially bad when there’s turbulence. But if the pilot announces,“We’re experiencing some normal turbulence. We should pass through in 10 minutes,” I immediately feel better. The psychological benefit of being informed is a real benefit, and the psychological harm of not knowing, is a real harm. Providing more information to asylum seekers, from a reliable source, would be a big help.

Finally, I will add one “bonus” suggestion, which I’ve made before. USCIS should allow for premium processing of asylum applications. I believe the primary objection to this idea is the appearance of impropriety: It looks bad when an asylum seeker is able to pay money to expedite his case. However, I still believe that the benefits of premium processing outweigh this concern. Those who oppose the asylum system will never be convinced, and there is little point in trying to appease them, especially when the cost of appeasement is further harm to people seeking asylum.

OK, Asylum Division, there you have it. Now, let’s see what you can do.

Continue reading

94 Comments

Asylum Case Delayed Forever? Here Are Some Possible Reasons

by Jason Dzubow

These days, all asylum applicants face long waits prior to their interviews. After the interview, some applicants receive a decision in two weeks; others wait months; still others—thankfully, a minority—wait for years without a decision.

A helpful diagram of the U.S. asylum system.
A helpful diagram of the U.S. asylum system.

Why does it sometimes take so long to get a decision? Our dogged reporters at the Asylumist have come into possession of an internal Asylum Office document that sheds light on this question (ok, in truth, the document is publicly available, but it’s not so easy to find). The document is the Quality Assurance Referral Sheet, which lists the categories of cases that must be submitted to headquarters (“HQ”) for further review.

Cases submitted to HQ often face substantial delays. So if your case falls into one of the below categories, you can expect a longer wait for your decision. How long? I have no idea. Some of our cases that go to HQ receive decisions relatively quickly. Others languish for months; sometimes years. There seems to be no way to predict how long such cases might take.

Without further ado, here are the asylum-seeker categories that hopefully you don’t fall into:

Diplomats and Other High Level Officials: Any decision—grant, referral to court or a notice of intent to deny—in the case of a sitting diplomat to the U.S. or United Nations, other high-level government or military officials, high ranking diplomats to other countries, and family members of such people must have their cases reviewed by headquarters. The same is true for any asylum applicant who fraudulently obtained a diplomatic visa.

National Security/Terrorism-Related Inadmissibility Grounds (“TRIG”): Any decision in a case that would be granted but for a TRIG bar, regardless of whether an exemption to the bar is available, must go to HQ. The TRIG bar is quite broad and many people are potentially affected. This includes people who worked for or supported terrorist organizations (or more accurately, organizations that the U.S. government views as terrorists), and even includes people who “supported” terrorists under duress. An example might be someone who paid money as ransom or who was forced on pain of death to provide services to terrorists. TRIG is particularly tricky because some cases (recent numbers are not available, but last year’s numbers are here) are placed on indefinite hold, meaning the applicant will never receive a decision, at least not until the government gets around to enacting new regulations on the subject. If you think your case might be subject to a TRIG hold, you can email USCIS (the email address is here, at the bottom of the page). In my limited experience (two cases), USCIS has been responsive and has informed me whether my cases were being held due to terrorism-related grounds (they were not).

Other National Security: In order to grant a case involving national security concerns, where the concern was not resolved through vetting, the case must go to HQ. Aside from terrorism, national security concerns can include a wide range of activities, including suspected gang membership or involvement in other criminal activities.

Persecutor-related issues: Asylum grants are referred to HQ where the evidence indicates that the applicant may have ordered, incited, assisted or otherwise participated in acts of persecution or human rights violations, and the individual has demonstrated that he should not be barred as a persecutor. Also, before a credible applicant is referred to Immigration Court or issued a Notice of Intent to Deny letter based on the persecutor bar, the case must be reviewed by HQ. You might fall into this category if you served in the police or military of your country, if you were a prison guard or you interrogated prisoners, and if your government has a record of abusing human rights.

Publicized or Likely to be Publicized: High-profile cases that have had or are likely to have national exposure, not just local interest, are subject to HQ review. If your case is getting media attention, or if it could affect relations with your home country, the case will likely be sent to HQ before any decision (good or bad) is issued.

Firm Resettlement: If a person is “firmly resettled” in a third country—meaning, she has the ability to live permanent in a country that is not the U.S. and is not her home country—she is ineligible for asylum. Where the asylum office would have granted the case but for firm resettlement, the case is sent to HQ for review.

Juvenile: Where the asylum applicant is less than 18 years old at the time of filing, the case will be referred to headquarter if the Asylum Office intends to deny.

EOIR- Prior Denials: Where an applicant was previously denied asylum by the Executive Office for Immigration Review (the Immigration Judge and/or the Board of Immigration Appeals), the case must be reviewed by HQ before it can be granted.

Discretionary Denials/Referrals: If the Asylum Office intends to deny a case or refer it to the Immigration Court based solely on “discretion,” the case must be reviewed by HQ. This means that the asylum applicant met the definition of a refugee and is otherwise eligible for asylum, but is being denied or referred due to reasons that are not legal bars to asylum. A discretionary denial might be for a crime that does not bar asylum, like DUI or failure to pay child support, or for some other lack of good moral character.

National of Contiguous Territory/Visa Waiver Country/Safe Third Country: Where the Asylum Office intends to grant the case of an applicant from a contiguous territory (Canada or Mexico) and the case involves a novel legal issues or criminal activity by the applicant in the U.S. or abroad, the case must be referred to HQ. Also, cases of applicants from countries in the Visa Waiver Program must be referred to HQ before they are granted. In addition, grants of applicants who are nationals of countries with which the U.S. has a Safe Third Country agreement must be referred to HQ (the only country with which we currently have such an agreement is Canada).

Safe-Third Country Agreement: All cases in which evidence indicates the STC agreement may apply, irrespective of whether the applicant is eligible for an exception, must be referred to HQ. This means that anyone (regardless of country of origin) who was first in Canada (the only country with which we have a STC agreement) and then came to the United States for asylum, must have her case reviewed by HQ.

Asylum Office Request for HQ Quality Assurance Review: Any case for which the Asylum Office Director requests review from headquarters will be reviewed.

As you can see, there are many reasons why a person’s case might be referred to headquarters for more review (and more delay). It would be helpful if the Asylum Office could publish some data about HQ review—perhaps how long each category of review takes and how many cases are currently under review. I understand why HQ cannot easily predict how long the review will take for an individual case, but if more information were made public, it would help ease the wait for asylum applicants.

Continue reading

334 Comments

The Curse of the “Recommended Approval”

by Jason Dzubow

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

Grant or grant not. There is no try.
Grant or grant not. There is no try.

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading

184 Comments

A Statistical Look at the Asylum Office

by Jason Dzubow

My associate Ruth Dickey continues her review of data from our cases filed at the Arlington Asylum Office. She reports her findings here:

One of the biggest sources of client frustration is delay after the asylum interview. Clients are often separated from family members who remain in danger. They feel as though the future is uncertain, and they see no end in sight to their ordeal. The lack of a final decision is stressful and depressing.

Attorneys also face stress and extra work due to delayed decisions. For example, we repeatedly contact the Asylum Office about our clients’ cases, we answer client questions, and we renew employment authorization documents. We have resisted charging more money for this extra work, but it makes operating a business very difficult. Also, we have almost no power to make the decisions arrive faster, and so we feel the stress of our clients’ frustration without being able to do much about it.  

Looking at data from 136 of our cases—filed in 2013 and 2014 in the Arlington, Virginia Asylum Office—we can see that about one-third of the cases have been interviewed but are still awaiting decisions. The charts below compare cases filed in 2013 with cases filed in 2014:

Chart A1

 

ChartA2

The Arlington Asylum Office is working through cases filed in 2013. But unfortunately, it is moving very slowly—we currently have no cases scheduled for interviews in Arlington.

The Asylum Office generally has a goal of issuing its decision two weeks after the interview takes place. Our data shows that they usually do not meet this goal. Of our interviewed cases, only about 1-in-5 applicants received a decision within two weeks of the interview:

Chart A3

For clients who have been interviewed and have received decisions, wait times vary widely. The median wait time for 2013 and 2014 cases was 34 days – but ranged up to 719 days (and keep in mind that this does not include data from people who have been interviewed and who are currently waiting for a decision). The following chart shows the wait time until a decision was made, by interview date:

Chart A4

Of course, dozens of our clients have not gotten decisions yet, and so we do not know how long they will ultimately wait.

As the next chart shows, we currently have several clients who have been waiting over a year for a decision, and a few who have been waiting for more than two years. If these clients’ information were added to the chart above, it would tell an even more dismal story since they have already waited far longer than the median wait time for cases where a decision was issued.

Chart A5

Lastly, let’s look at recommended approvals. Recommended approvals are issued in cases where the Asylum Office is convinced that a case meets the standard for asylum, but the background check is not yet complete. People with recommended approvals can apply for employment authorization, but cannot sponsor their family members who are waiting to join them in the U.S. The following chart shows how long our clients have waited from the date of the recommended approval to the date of the final decision (never mind how long they might have already waited to get the recommended approval). Information about people who have received recommended approvals and who are still waiting for their final decisions are also shown in the same chart:

Chart A6

Despite making numerous inquiries about our pending cases, we have never received a specific answer as to why delays occur. Usually, the Asylum Office informs us that the delay is due to the security background check. However, it is unclear why the background checks take so long for affirmative asylum seekers, but do not cause delays for other applicants seeking benefits from USCIS. Interestingly, asylum seekers in Immigration Court do not face these types of delays either, even when they come from conflict zones or countries where terrorism is a concern. Only affirmative asylum seekers seem subject to these inordinate delays.

Can we draw general conclusions about the operation of the Arlington Asylum Office based on our data? It is difficult to say. Many of our clients come from places like Afghanistan and Iraq, where security-background-check delays are more burdensome. Also, our sample size is relatively small. Nevertheless, our findings comport with what we hear from other attorneys and applicants with cases in Arlington (and other asylum offices).

Since the backlog began in 2013, the Asylum Division has been working to improve the situation by hiring more officers and modifying some of its procedures. We are hopeful that the asylum system will continue to change to better meet applicants’ needs. Until then, we will continue to analyze data from our cases.

Continue reading

63 Comments

Postcard from the Apocalypse: November 29, 2019

by Jason Dzubow

 

BEGIN TRANSMISSION: 

If you’re reading this, maybe there’s still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end. 

This is how the Immigration Court backlog ends.
This is how the Immigration Court backlog ends.

I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could have—could still—turn out differently. 

What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.

“What was it, then?!” you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity–a black hole, if you will–that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that’s left is me and a few others. We don’t have much time. 

It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didn’t they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration Court—No two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?

Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didn’t think it was a big deal. They were violating the alien’s due process rights, but only a little. And it was for a good cause—efficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen. 

And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single day—November 29, 2019. They claimed this was some sort of “holding” date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind! 

Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came. 

EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didn’t. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose we’ll never know, and anyway, it doesn’t much matter. 

The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn’t only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B’s, TN’s, and L’s, Q’s and R’s, H1-B’s and E’s, all varieties of A’s and J’s, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.

And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path–a black hole. But like I say, if you’re reading this, there’s still hope. There is a simple solution to the Immigration Court backlog. It’s so obvious, that it’s a wonder no one noticed it before. All you have to do is…

ERROR ERROR ERROR END TRANSMISSION 

Continue reading

4 Comments

Where the [Expletive Deleted] Is My Work Permit?

by Jason Dzubow

If you look at the processing times on the USCIS Texas Service Center website, you will see something interesting. The website indicates that USCIS will complete an asylum seeker’s I-765 form–the application for an Employment Authorization Document or “EAD”–in three weeks. Perhaps USCIS views this time frame as aspirational. I view it as metaphorical. Or maybe delusional.

EAD ETA? WTF.
EAD ETA? WTF.

The reality is that EADs are not processed in three weeks. If you’re lucky, it will take three months. If you’re not lucky, it may be a lot longer than that. Indeed, it seems of late that processing times for EADs have become much slower. As a result, some of our clients have lost their driver’s licenses (which are tied to the EADs) or their jobs. The problem has caught the attention of the American Immigration Lawyers Association, which is investigating (and if you are an attorney whose client’s EAD is delayed for more than 90 days, you can report it here). 

So why is this happening? As usual, I have no idea. USCIS doesn’t explain such things. What can be done about it? A few things:

– If you are filing to renew your EAD, you should file as early as possible. The instructions indicate that you can file the application 120 days before your old card expires. That would probably be a good idea. However, you should be careful not to file any earlier than 120 days ahead of time. EADs filed too early might be rejected, which will result in further delay (because you have to wait for the rejection notice and then re-file).

– If you already filed for your EAD and the application has been pending more than 75 days, you can contact USCIS customer service and ask that an “Approaching Regulatory Timeframe ‘service request’ be created.” Supposedly USCIS will route the service request to the appropriate office for review. You should note that if you receive a request for evidence and then respond, the “clock” starts over for purpose of calculating the 75-day period. You can see more about the obscure and exciting calculation of the 75-day period here.

– If you are applying for your first EAD based on a pending asylum case, you can file 150 days after your asylum application was initially filed (the date of filing is on your receipt). However, if you have caused a delay in your case (by rescheduling an interview, for example), the delay will affect when you can file. The I-765 instructions explain how applicant-caused delay affects eligibility for an EAD. Please note that the 150-day waiting period is written into the law and cannot be expedited.

– If your case is in Immigration Court, and you cause a delay (by, for example, not accepting the first hearing date offered to you), the Asylum Clock might stop, and this could prevent you from receiving an EAD. I have written about the dreaded asylum clock before, but if you are in court, you’d do well to consult an attorney about your case and about your EAD.  

– If you entered the country at the border and were detained and then “paroled” in, you might be eligible for an EAD as a “public interest parolee”: see page 4 of theI-765 instructions. This one can be tricky, so you might want to consult with a lawyer before you file under this category.

– If you already have asylum, but your EAD expires, fear not: You are still eligible to work. You would present your employer with your I-94 (which you received when you were granted asylum) and a state-issued photo ID (like a driver’s license). For more information, see the Employer Handbook, pages 13 and 50.

– If you are a refugee (in other words, you received refugee status and then came to the United States), you can work for 90 days with your I-94 form. After that, you must present an EAD or a state-issued ID. For more information, see the Employer Handbook, pages 13 and 50. 

– If all else fails, you can try contacting the USCIS Ombudsman about the delayed EAD. The Ombudsman’s office assist USCIS customers and tries to resolve problems. Normally, they want to see that you have made some effort to resolve the issue through regular channels before they intervene, but if nothing else is working, they may be able to help out.

The last thing I will say about asylum seekers and EADs is this: If you do not have an EAD, you are not eligible to work lawfully. However, if you are able to find a job without the EAD, it should not affect your asylum case. In other words, working without permission does not block a person from obtaining asylum. It may affect your ability to obtain other types of immigration benefits, and if you have questions, you should consult a lawyer.

It is unclear to me how an asylum seeker is expected to survive without a job or a driver’s license. With all the problems in the asylum system, you’d think USCIS could do something to make life easier for people waiting for their cases to resolve. One thing to be done is to process the EADs in a timely fashion. Another would be to make the EADs valid for the length of the case, so there is no need to re-apply (or at least make them valid for two years instead of one). For now, however, it is up to asylum seekers to fend for themselves: Apply as early as you are allowed for the EAD and hope that it is granted quickly.

Continue reading

546 Comments

My Asylum Case Is Delayed; What Can I Do?

by Jason Dzubow

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

Yipee! Asylum cases filed during the Jurassic period are now being interviewed.
Yipee! Asylum cases filed during the Jurassic period are now being interviewed.

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

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

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

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

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

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

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

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

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

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

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

Continue reading

1,405 Comments

Immigration Court: The Other Backlog and What to Do About It

by Jason Dzubow

I’ve written quite a bit in these pages about the backlog at the Asylum Offices, but today I want to focus on another backlog–in the Immigration Courts–and what can be done to improve the situation. The Court backlog has been a bit off my radar; I suppose because the Immigration Courts have always been slow, and so delay in that realm was the norm. But the fact is, the delays in Court have gotten worse. My furthest case is currently set for March 2019. I expect to travel to the Court in my hovercraft.

Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.
Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.

The basic problem for the Courts, and across the government, is money. Resources are limited and now, with a Congressional leadership hostile to immigration, it seems less likely that the budget for EOIR–the Executive Office for Immigration Review; the agency that oversees the Courts–will be expanded (though a new, anti-immigration bill pending in the House would create 50 new Immigration Judge positions). However, there are some reforms that could be implemented that would not require additional money from the government.

Below are a few suggestions. Some might require Congressional action; others would not. Given the current situation, something needs to be done. Perhaps some of these ideas would help alleviate the Court backlog:

– Impose Costs: Criminal and civil courts routinely impose costs and fines on people in the system, so why shouldn’t Immigration Courts do the same? There generally is only one reason that a person would have a case before an Immigration Judge–he violated the immigration law. Maybe the violation wasn’t his fault (think referred asylum seekers), and so a fine or payment of costs is not warranted, but the IJ can make this determination. The Immigration Court system is expensive, and it seems fair that people who are in the system because they violated the law should help pay for it. And of course, this money could be used to help improve the system.

– Premium Processing: Certain application before USCIS allow for premium processing. The applicant pays additional money and receives a faster decision (though not necessarily a better decision). Maybe the Immigration Courts could create some type of premium processing so that an alien could pay additional money to speed up her case. I have written about this idea in the context of the Asylum Office. The people who pay the premium processing fee would benefit the most from this plan, but the infusion of money into the system should benefit everyone.

With regard to the imposition of costs and premium processing, it seems a reasonable question to ask: Is this fair to people who cannot afford to pay? I suppose it is not, but America is not really a fair place. We are a liaise faire capitalist democracy. Every man for himself, and all that. We routinely fine the poor for being poor, and while I don’t like imposing costs in the immigration context, it is a way to improve the system for everyone–even those who cannot pay.

One last point here. Maybe one way to ease the burden would be to spread out the cost. If an alien is fined or forced to pay costs (to pay for the court, DHS, his own detention, etc.), those costs could be paid over time. Instead of receiving a green card, for example, the alien could receive a conditional green card that must be renewed every two years. As long as he continues to pay his debt, the card will be renewed.

– Empower DHS: DHS attorneys are overworked and lack the resources necessary to properly do their jobs. Adding additional staff to the various Trial Attorneys offices would allow DHS to review cases in advance. This would allow attorneys like me to file applications for relief in advance. DHS could then review the applications and–where appropriate–agree to the relief. Of course, DHS would not agree to relief in all cases, but in many cases, relief is not contested. If we could agree on relief in advance, we could remove the case from the Court’s docket, thus freeing space for other cases. Indeed, perhaps this could be combined with premium processing, so that the alien can pay a fee to DHS to review her case (and DHS could use this money to hire more staff). Maybe DHS could even meet with the alien to further explore whether relief is appropriate. If, after examining the case, DHS determines that relief is appropriate, it could inform the Court, which would then grant the relief without a hearing.

There has been some (tepid) movement in this direction, with prosecutorial discretion, but that does not go far enough. Aliens who are eligible for substantive relief do not want prosecutorial discretion; they want their cases granted. If DHS had the resources to review and decide cases in advance, it would help alleviate the backlog before the Immigration Courts.  

– Pre-Master Calendar Hearings: Let’s face it, Master Calendar Hearings (“MCH”) are a huge waste of time. Why not require any alien who enters the system to attend a pre-MCH with a member of the Court staff (not an IJ). The pre-MCHs could be arranged by language group, so that everyone attending speaks the same language and the Court staff member could be fluent in that language (or have an appropriate interpreter). At the pre-MCH, the aliens would watch a video–in their own language–explaining the system and their rights (basically what the IJ repeats to pro se aliens 31 times each MCH). The staff member could answer basic questions and encourage the pro se aliens to find lawyers (basically what the IJ does 31 times each MCH). Aliens who will not use a lawyer can be scheduled for an in-person MCH, like what we have now. Aliens who say they will hire a lawyer will be given a deadline for the lawyer to enter her appearance (see the next suggestion for more on lawyers and MCHs). If the deadline passes, the alien will need to attend an in-person MCH.

– e-Master Calendar Hearings: EOIR now requires all attorneys to register and obtain an EOIR ID Number. As far as I can tell, EOIR does nothing with these ID numbers. However, it (supposedly) is a first step towards electronic filing. Federal courts across the United States require electronic filing, and I see no reason that the Immigration Courts should not do the same. Once an attorney enters her appearance, she should be able to go on-line and plead to the allegations and charges in the Notice to Appear (the charging document in Immigration Court). She should also indicate the relief sought. If there is some reason that the lawyer needs to see the IJ, she can request to appear at a regular MCH. But for the large majority of cases, all the pleadings and requests for relief could be done on-line. How, you ask, would this be an improvement over the current system, where lawyers can file written pleadings? At least in my experience, written pleadings are a huge pain in the tuchus. IJs often ignore them until the last minute, and we have to repeatedly call the Court to see whether the IJ will rule on them. So they really are not worth the trouble. If there was an easy electronic system that actually worked, and we could avoid MCHs, attorneys would be much inclined to use that system. It would save Court and DHS time, and it would also save attorney time and perhaps reduce costs for the alien.  

OK, I suppose that is more than enough for now. If anyone at EOIR wants to hire me to implement these changes, you know where to reach me…

Continue reading

60 Comments

I Was Interviewed for Asylum, But I Never Received a Decision

by Jason Dzubow

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

Better late than never.
Better late than never.

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

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

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

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

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

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

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

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

Continue reading

1,002 Comments

Premium Processing for Asylum Seekers

by Jason Dzubow

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

Waiting in line is a poor man's game.
Waiting in line is a poor man’s game.

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

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

So how would premium processing help?

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

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

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

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

Continue reading

27 Comments

Why Has the Asylum Office Skipped My Case? Part 2: Solutions

by Jason Dzubow

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

DHS has created a new, less humorous version of the old NPR gameshow.

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

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

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

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

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

Continue reading

103 Comments

Why Has the Asylum Office Skipped My Case?

by Jason Dzubow

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

The storage room for backlogged asylum cases.
The storage room for backlogged asylum cases.

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading

314 Comments