Fixing Asylum Part 3: The Asylum Office

by Jason Dzubow

According to the most recent data, as of “July 31, 2020, USCIS had 370,948 asylum applications, on behalf of 589,187 aliens, pending final adjudication.” “Over 94% of these pending applications [about 348,691 cases] are awaiting an interview by an asylum officer.” The remaining cases–approximately 22,257–have been interviewed and are waiting for a decision.

In terms of resources, the most recent information I could find is from May 2019. At that time, there were 763 Asylum Officers and 148 supervisory officers. While the majority of these staff members was devoted to interviewing affirmative asylum seekers, “over 200 officers” were assigned to conduct credible fear interviews at the border (a credible fear interview or CFI is an initial evaluation of asylum eligibility). Assuming everything remains the same (meaning that there are about 563 officers available for affirmative cases) and assuming each officer conducts eight interviews per week, it would take about 15 months to get through the entire backlog–if no new cases enter the system.

Realistically, though, new cases are continuously being filed, Asylum Officers probably can’t adjudicate eight cases per week for 52 weeks a year, and–given the mess at the Southern border and President Elect Biden’s plan to send more resources to that region–it is likely that many more than 200 officers will be assigned to CFIs (which will make them unavailable for “regular” affirmative asylum interviews). In short, even if the pandemic magically disappears, it seems unlikely that we can get through the backlog anytime soon. We are today facing the same problem that has dogged the asylum system since at least 2013: There are too many cases and not enough officers.

So what can be done?

Hire More Officers: One obvious solution is to hire more Asylum Officers. While the President Elect has not indicated whether or not he would hire more AOs, he has set forth an ambitious humanitarian agenda for the U.S.-Mexico border, and it seems impossible that he could fulfill that goal without hiring many more Asylum Officers. Of course, this would cost money, and it is unclear whether USCIS has the means to pay for more officers or whether Congress would be willing to increase the agency’s budget.

Even if there is no additional money available, there are steps Mr. Biden can take to improve the asylum system.  

More Efficient Scheduling and Shorter Interviews: The data I found (pre-pandemic) shows that roughly 8% of asylum applicants are “no shows” for their interviews and another 15% cancel their interviews (what percentage of these are rescheduled, I do not know). This makes sense, given the long gap between filing for asylum and attending an interview: People leave the U.S. or find other ways to obtain status here; others fail to update their address and so never receive notice of the interview. To mitigate this problem, Asylum Offices schedule more interviews than they have the capacity to conduct, with the expectation that some applicants will not appear. This seems to me a huge waste of energy. Why not call applicants a few weeks in advance to determine whether they intend to appear for their interview? This should be done after the interview notice is mailed out, and that notice should indicate that the applicant will receive a call from the Asylum Office. Applicants who fail to respond to the phone call can be rescheduled and sent a warning letter by mail. Those who still do not respond can then be referred directly to Immigration Court. Where possible, the calls and notices should be in the applicant’s native language.

There are other benefits to calling applicants prior to the interview: They can be reminded to submit all evidence in advance, and can be queried about what language they will speak at the interview. They can also be told to review the I-589 form and determine in advance what updates and corrections are needed. Better yet, the asylum interview notice can include a form to update the I-589, which is often submitted years before the interview. While not all applicants will be able to complete such a form on their own, many can, and this will save significant time at the interview.

Another way to save time at the interview would be to include a copy of the “bar” questions along with the interview notice. The “bar” questions determine whether a person is barred from receiving asylum (because they are criminals or terrorists, for example). Why not require applicants to review these questions ahead of time, and then certify at the interview that they read and understood each question? Most people will answer “no” to all the bar questions, and if the officer has specific concerns, she can raise those at the interview. Also, while we’re on the subject of bar questions, why do the officers need to ask these questions to children? I’ve seen officers question dependent children as young as three or four years old about whether they are terrorists. It’s just plain silly (though it can be entertaining). We would save a lot of time and trouble if parents could answer these questions for their minor children, or at least for children under a certain age–say 14 or 15.

LIFO vs. FIFO: Another issue related to scheduling is The Great LIFO-FIFO Debate–whether cases should be interviewed in the order received (first-in, first-out or FIFO) or whether the newest cases should receive priority (last-in, first-out or LIFO). All Asylum Offices are currently operating under the LIFO system. The logic is that interviewing new cases first will deter fraudulent asylum seekers, since they won’t be guaranteed a years-long wait for their interview (during which time they can live and work in the U.S.). The Asylum Division believes LIFO is working, as there was a 30% drop in new filings after it was implemented. However, I hope they will revisit this finding. My sense is that any decrease in filings was unrelated to the LIFO policy and instead came about for other reasons, such as fewer people arriving in the U.S. due to stricter visa requirements.

Also, from the perspective of asylum seekers, LIFO is very unfair. Old cases are given the lowest priority, meaning many people will (seemingly) never get to the front of the line. These applicants are facing severe hardships, including separation from family and endless uncertainty. At a minimum, a certain percentage of officers should be assigned to work on backlog cases, starting with the oldest. Better yet, we should return to FIFO and the Asylum Office Scheduling Bulletin, so we will have a more orderly and predictable process for scheduling interviews.

Create Rules for Expediting: One final point about scheduling interviews: We need a more formal system for expediting cases. Currently, it is possible to expedite, but there really are no rules about who is eligible to expedite or about what constitutes a valid reason to expedite. The predictable result is that many people try to expedite, which wastes Asylum Office staff time and also makes it more difficult for the most needy people to expedite their cases. There should be a national policy with publicized criteria about who is eligible for expedition. In my person opinion, the first priority should be people who are separated from their family members, especially minor children. For me, a distant second is a person with a documented mental or physical health issue. Until the Asylum Offices can expedite all the people in these two categories, I see no reason to allow for any other category of applicant to request expedited processing.

Premium Processing: A more radical idea to address the backlog–and one that I’ve been pushing for a while now–is premium processing for asylum seekers. Premium processing already exists for several USCIS forms, and allows an applicant to pay an additional fee (currently between $1,500 and $2,500) for faster processing of her case. Affirmative asylum seekers–in contrast to refugees–have paid their own way to the United States, and so presumably, many of them could afford an additional fee for premium processing. Also, while the idea of asylum seekers paying for their cases may seem unpalatable, the Trump Administration has already implemented a non-waivable $50 fee for all asylum applicants (as of now, that fee has been blocked by a federal court), and so the taboo of paying for humanitarian protection has already been broken. Thus, as I see it, there is no valid objection to implementing premium processing for asylum seekers, and–given the overwhelming humanitarian need–it is a solution whose time has come.

How would premium processing help? For those who pay, their cases would be interviewed more quickly. How quickly, I do not know, but premium processing for other USCIS forms is currently 15 days. I doubt that time frame would be realistic for an asylum case, but perhaps 60 or 90 days would be achievable. Even those who cannot pay would benefit, as the infusion of money into the system would benefit all applicants. An added benefit from the government’s viewpoint would be that faster processing would–if we accept the LIFO logic–help discourage fraudulent applications. So premium processing is a win all around: For the applicants who pay, for those who do not pay, and for the U.S. government.

Eliminate the Asylum Office: A final idea–perhaps the most radical of all–is to eliminate the Asylum Office altogether, at least for most cases. Under the current system, an applicant files an asylum case, and if he loses, his case is usually referred to Immigration Court where an Immigration Judge reviews the case de novo and issues a brand new decision. As an advocate, I am grateful for a second chance to present my clients’ cases. But in terms of “the system,” this type of redundancy is not very efficient. One solution might be to shift all asylum cases where the applicant is out-of-status to the Immigration Court. Or maybe just leave vulnerable applicants–such as minors–at the Asylum Office. While this idea has been floating around for years, it is still unclear whether it would result in more or less efficiency. In any event, given the current mess, nothing should be off the table, and the idea of (mostly) eliminating the Asylum Office might warrant further study.

For the sake of asylum seekers and their families, and for the integrity of our humanitarian immigration system, we need major changes to the affirmative asylum system. Perhaps some of these ideas can contribute to that effort.

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Fixing Asylum Part 2: USCIS Forms

by Jason Dzubow

Here’s a point that should be self-evidence, but isn’t: Bureaucracy exists to facilitate the implementation of the law. Congress passes a law, and then government agencies create a system of policies and procedures to put that law into effect. In principle, this system should be easy to use and efficient, and should allow people to obtain the benefits to which they are entitled. In other words, it should be the exact opposite of what we have with the USCIS.

There are many problems with the agency that adjudicates immigration benefits (including asylum), but here, I want to focus on one particular area of concern: USCIS forms. USCIS forms are poorly designed, confusing, inconsistent, culturally insensitive, and inefficient. Here, we’ll discuss these problems in a bit more detail, and I will make some suggestions for improvement.

Let’s start with the most basic question on every USCIS form–the applicant’s name. Almost every form has boxes for an applicant’s first, middle, and last name. The problem is that naming convention vary widely, depending on where you are from. Many cultures do not have a first-middle-last name format, and so the USCIS question does not make much sense. One solution might be to ask the question in a more specific way: “Write your name as it appears on your passport.” Of course, not everyone has a passport, so maybe a second question can ask: “Write your name as it appears on your birth certificate or other government-issued identity document.” In addition to these iterations, the name question would also need to ask about “all other names used” (as many USCIS forms currently do). The confusion surrounding this very basic question–What is your name?–illustrates the difficultly of creating one-size-fits-all forms.

Form a forum for reforming forms.

Another problem arises with regard to addresses and places of employment. One issue here is that address formats vary widely by country, and the forms generally only allow for addresses in the format that we use in the United States. Another issue is that different forms request address and employment histories in different ways. So for example, the I-589 form (application for asylum) allows you to list one address or one job per line, so that your address and job histories fit onto one page (with room to spare). The I-485 (application for permanent residency), by contrast, requires this information in a different format, so that less information takes up much more space. The N-400 (application for citizenship) requests the same information in a third format. Maybe this is a minor quibble, but the inconsistencies between the various forms is confusing, and it is not confined only to the applicant’s address and work histories.

One area where inter-form differences sometimes create problems is the issue of arrest history. Different forms ask about this in different ways. Sometimes, USCIS wants information about all arrests. Other times, they want only information about criminal arrests or convictions. In some questions, USCIS wants to know about arrests anywhere in the world; other times, they want only arrests that occurred in the United States. Indeed, if you look at the main forms a successful asylum applicant will complete over the course of their time with USCIS, there are probably dozens of questions about criminal activity, and those questions are inconsistent between forms, and–in many cases–confusing, even for someone trained in the law.

Speaking of confusing questions, if you look at the lists of questions on the I-485 and the N-400, you will see scores of yes/no questions about all sorts of activities. Some of these questions are not amenable to a yes-or-no answer. Others (many others) are poorly written and difficult to understand. In many cases, the two forms ask similar questions using different language. All this can easily trip up an applicant and can lead to unintentional inconsistencies where there really are none.

Another problem is the large number of yes-or-no questions on many forms (the I-485, for example, has over 100 yes/no questions). These questions relate to everything from criminal and immigration violations, to national security, to persecution of others, to membership in totalitarian political parties, to prostitution and illegal gambling. Most people check almost all the boxes “no,” but periodically, they may need to check “yes.” Given the vast number of questions, the fact that almost all are “no,” and the fact that many of the questions are confusing, it is easy to slip up and miss a “yes” answer. This can lead to big trouble, including having your application denied.

These examples represent just a few of the problems with USCIS forms, and every immigration lawyer can cite many more. The short answer is that all USCIS forms need a major overhaul. This should be done with an eye towards making the forms shorter (the I-485 and the N-400 are each 20 pages long). The forms should be made consistent with each other in terms of format and the substance of questions asked. They should accommodate different naming and address conventions.

Also, USCIS needs to do something about the overwhelming number of yes/no questions. There are too many questions, many are difficult to understand or redundant (or both), and many are irrelevant (do we really need three questions about Nazi activity between 1933 and 1945?). The number of questions should be reduced and the questions themselves should be simplified so that you don’t need a law degree to understand what the heck USCIS is asking about.

One final point on forms: Why are we still printing forms and mailing paper copies to the agency (to a plethora of different mailing addresses)? A limited number of forms can be filed online, and USCIS should expand e-filing, so that all forms and evidence can be filed online. E-filing would also solve the problem of USCIS rejecting forms for simple mistakes or for not writing “N/A” in every empty box. 

To reform its forms, USCIS needs help. It needs to hear from immigration advocates, immigrants, and other stakeholders. Forms should be more understandable and more able to accommodate cultural differences. Questions should be standardized across different forms, and the format of the forms should be made more consistent. All forms should be available for online filing. 

Improving USCIS forms is long overdue. Fixing the forms will make USCIS more efficient, and will ultimately save everyone time, trouble, and money. The purpose of USCIS forms is to facilitate the application process and to help USCIS determine who is–and is not–eligible for an immigration benefit. More efficient forms will help move USCIS towards these goals.

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Fixing Asylum Part 1: Politics

by Jason Dzubow

The President and his allies are doing everything in their power to subvert the result of last month’s election. So far, their efforts have not changed the outcome, but we are still in a very dangerous place. Hopefully, the system and our country will withstand this unprecedented assault on democracy and the rule of law. If so, and if Joe Biden assumes office in January, he will face a number of daunting challenges: The pandemic and healthcare, the economy, climate change, divisiveness and decaying faith in democracy, racial justice, and immigration reform, to name the most obvious. How much attention immigration–and specifically asylum–will receive in this mix remains to be seen.

Prior to the election, the Democratic Party and the Biden campaign set forth their proposals for immigration reform, which are quite sweeping. Many of Mr. Biden’s ideas can only be enacted with the cooperation of Congress. Others could be put into effect without Congressional action, just as President Trump implemented his immigration agenda through agency rulemaking and executive orders.

A minority of the immigration policy changes proposed by Mr. Biden relate specifically to asylum, and most of these concern asylum seekers at the Southern border. This is not surprising, as the border is a disaster, but my concern is that applicants at the Asylum Office and in Immigration Court–which together represent close to two million people–will be overlooked.

Kudos for Biden; Coup Don’ts for Trump.

In this series of posts, I hope to set forth my ideas for reforming and improving our nation’s asylum system.

Before we discuss substance, however, I want to talk politics, since any reform will take place in the context of the current political crisis where, even in the best case, millions of Americans will view Mr. Biden’s Administration as illegitimate and where many Republican leaders will be vying to outdo each other in obstructing the new President’s agenda. The divisive political climate will potentially limit Mr. Biden’s ability to make changes, and in turn, any changes he manages to implement could lead to further division. This begs the question: Should the new Administration follow the Trump game plan, and do all within its power to achieve its goals? Or is it better to focus on areas of bipartisan agreement (if any can be found)?

I’m of two minds about this dilemma. On the one hand, non-citizens in our country have been treated unfairly and cruelly. They have been lied about (and to), terrorized, exploited, and in many cases, forced to wait for years for status to which they are legally entitled. Also, when President Obama tried to take a middle road on immigration (remember when he was referred to as the “Deporter-in-Chief”?), it did nothing to move the other side towards compromise. Perhaps that’s because there is a stark partisan divide over illegal immigration: Only 23% of Democrats view it as a “big problem,” while 67% of Republicans see it that way. So if compromise is impossible, maybe the Biden Administration’s better approach is to implement whatever reforms it can manage regardless of the political consequences.

On the other hand, what is most needed now is to try to heal the divisions in our nation. Pushing through partisan immigration reforms (legislatively or administratively) will likely exacerbate the divide. Further, if President Biden overplays his hand on immigration, it could result in a backlash that advantages Republicans and other immigration restrictionists. Of course, the same predicament exists for other issues–like climate change–and the idea of waiting for a broader consensus when action is needed imminently makes little sense. Immigrants and asylum seekers urgently need relief and protection. So while ideally I believe it would be best to reach out to moderate Republicans and to continue working to educate the public about immigration, I also believe that we need to start enacting changes immediately.

That said, I think the Biden Administration needs to move with caution. Some immigration issues–such as DACA and (surprisingly) refugee resettlement–have broader bipartisan support than others, such as border security and deporting people who are here illegally. Certainly, the new Administration can focus on areas where it will encounter less resistance and face fewer negative repercussions.

The proposals I will make in this series fall, I think, on the more bipartisan side of the spectrum. I plan to discuss ideas for improving efficiency and fairness at the Asylum Office, the Immigration Court, and at USCIS.

In contrast to Mr. Biden’s pre-election policy agenda, my focus in this series will not be the Southern border. Protecting asylum seekers at the border is a more divisive issue than most other areas of immigration law, and I believe that advocates and policy-makers need to lay a political foundation before enacting successful change there. I’ve written about this in more detail before, but unless we build a more bipartisan consensus about who is eligible for asylum, we risk a severe backlash by easing restrictions at the Southern border. Indeed, one could argue that President Trump was elected largely as a reaction against perceived porous borders.

While the politics of border reform is a crucial concern, the situation along the U.S.-Mexico border is clearly untenable–people are dying and something needs to be done. How the Biden Administration will navigate that political minefield, I do not know, but I worry that the political capital required for improving conditions at the border will make it more difficult to enact needed changes in other, less politically-charged regions of the immigration system, such as USCIS, the Asylum Office, and the Immigration Court. In any event, those three areas will be the subject of the next several posts on this blog.

President Trump’s (hoped for) departure will open up some space to improve the situation for non-citizens: By reversing many of his Administration’s damaging immigration policies, but also–hopefully–by bringing long-needed improvements to the immigration system. The trick will be to balance that change with the current political realities, to minimize the inevitable counter-reaction, and to avoid doing further damage to the cohesion of our nation. 

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The All-or-Nothing Problem

by Jason Dzubow

The debate over immigration–legal and illegal–has become more divisive and seemingly more intractable in the face of the current Administration’s hard-line policies. In a democracy, ideally, people with different views about immigration would talk to each other and reach some type of compromise solution. That is difficult with any issue, but it is particularly problematic when it comes to immigration. There are many reasons for this, but for me, one reason stands out: Immigration is an all-or-nothing proposition.

What I mean is, under the immigration law, either a person gets to stay in the U.S. or they get deported. There is no middle ground. Contrast this with the criminal law. If a person robs a bank, for example, there are a wide range of responses available under our system of justice. The person could be sentenced to jail (for a short time or a long time), or fined (a lot or a little), or given probation. Perhaps the bank robber is a good candidate for rehabilitation and can be placed into a program to obtain appropriate services. In short, a criminal judge has many options, and can–theoretically–tailor a solution to fit the particular circumstances of the case. Immigration Judges have far fewer options.

When a person is placed into Immigration Court, it is for one reason: The U.S. government believes that the person should be deported from the United States. The charging document, called a Notice to Appear (“NTA”), lists the reason(s) why the “respondent” (the non-citizen) can be deported. If you look at the allegations in a typical NTA, you will see: (1) You are not a citizen or national of the United States; (2) You are a citizen and national of country X; (3) You entered the United States on a particular date with a particular visa (or without a visa); (4) You overstayed your visa and no longer have permission to remain in the U.S., or you committed some act (such as a crime) that makes you ineligible to remain in the United States. Sometimes, respondents deny the allegations. Maybe the government got it wrong. Maybe the person is not deportable. Usually, though, the allegations in the NTA are correct, and the respondent concedes removablity, and proffers some type of defense to being removed. Common defenses include asylum, Withholding of Removal, relief under the Torture Convention, Cancellation of Removal, and adjustment of status. There are also other, less common, options. At the end of the day, the respondent will either be granted relief based on one of these defenses, or he will be ordered to leave the United States.

Making a reasonable argument in the immigration debate is like bringing a flower to a gun fight.

Under this legal regime, there is basically no opportunity for compromise. The respondent wins everything or loses everything. One exception (sort of) is the asylum applicant who receives the “lesser relief” of Withholding of Removal or protection under the United Nations Convention Against Torture (“CAT”). An applicant will receive “lesser relief” where she is ineligible for asylum. Committing a crime could render a person ineligible. So could missing the asylum-filing deadline. Asylum is the better form of relief, since asylees can bring immediate family members to the U.S., can travel, and can eventually get their green cards and become U.S. citizens. People who receive Withholding or CAT can stay in the country with a work permit, but they cannot bring their family members here, travel or obtain their green cards or citizenship. This type of “compromise” (if it can be called that) leaves the respondent in a strange limbo: Here, but not here. Unable to feel secure in their status or stable and safe in the U.S. It also seems unfair, at least to me, to “punish” asylum seekers with lesser relief when their only mistake was to file late for asylum. Why should such people be treated the same way as criminals under the asylum law? So for me, if “lesser relief” in an asylum case is a compromise, it is a poorly thought out compromise, which has little basis in equity or justice.

I wonder if there could be another model. Is there a moral middle ground that allows qualified respondents to stay and feel secure here, but that does not completely ignore past immigration misdeeds? In other words, is there a way to satisfy Americans who don’t want the government to grant amnesty to law-breakers, but at the same time, to provide a viable path for respondents seeking relief in Immigration Court?

One could argue–convincingly in my opinion–that the existing immigration system does not give immigrants a pass, even if they do receive relief. For one thing, it’s not cheap to obtain a green card or citizenship ($1,225 and $725, respectively, if you only consider direct fees to the government). Also, most immigration applications (with USCIS or with the Immigration Court) take a long time. If you do receive relief and then want your family members to join you here, that process will usually take additional years. So even in the best case, immigration to the U.S. is not easy and not cheap.

Although respondents pay a price (in money and time), the current immigration system does not provide the type of flexibility available to judges in criminal or civil cases. So what can be done?

One possibility is to impose fines on respondents who violate the immigration law. If relief is granted, the Immigration Judge can determine whether a law was broken, and if so, whether a fine is appropriate, and how much. Relief would then be conditioned on completing payment of the fine. Of course, a major criticism of fines (in civil and criminal cases) is that they are a tax on the poor, and that they prevent people from achieving financial stability. In the asylum context, fines would likely be inappropriate, since it is perfectly lawful for anyone–even people who do not have permission to enter the country–to seek asylum. But in other contexts, fines might make sense.

Another possibility is to impose a waiting or probationary period on people who are granted relief. This already happens in certain cases (and indeed, the green card itself might be viewed as a type of probation, since it can be lost for not following the rules). For example, there are only a limited number of green cards available through Cancellation of Removal, and so if such relief is granted, the applicant usually has to wait (for a year or two) before a green card is available. This is akin to “waiting your turn,” which seems so important to people concerned about immigrants “jumping the line.”

Finally, in some cases, it may be appropriate to impose certain conditions on people who receive relief in court. For example, if an applicant has a prior conviction for DUI, perhaps the Judge could require the applicant to attend AA meetings or complete community service. For people with other criminal issues, maybe anger management classes would be appropriate. In some cases, maybe English classes or job training would be important. Final relief could be contingent on fulfilling your court-imposed obligations.

All these ideas are imperfect and preliminary. Perhaps it’s a fool’s errand to try to satisfy those who oppose “amnesty” for non-citizens. Maybe the lesson of the Trump Administration is that policy is made by imposing our ideas on others and eschewing compromise. Maybe. But for me, I still have hope that we can reach a point where civil discourse and reasonable compromise are possible. And certainly, as the political landscape continues to change (hopefully, at some point, for the better), we should be thinking about ways to re-work our immigration system so that more Americans have a stake in that system and feel that it serves their needs. Giving Immigration Judges more flexibility may be one path towards that goal.

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