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These days, I feel a bit like a broken record: Delay, delay, delay. It's all I seem to write about (and what I spend much of my work day dealing with). But it is the big issue with asylum cases, both in the Asylum Office and the Immigration Court, and so it is on everyone's mind. Today I want to talk about delay at the Asylum Office and what can be done about it.
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.
Originally posted on the Asylumist: www.Asylumist.com.
As of December 2014, there was 73,103 asylum cases pending in Asylum Offices across the United States. That's up from 65,759 in October, an increase of 7,344 cases in just three months (you can see the latest stats here, including a breakdown for each Asylum Office). So it's clear that despite their efforts, the Asylum Offices are continuing to fall behind in terms of processing cases. Indeed, in the best month of the last quarter, the Asylum Office completed 2,947 cases. At that rate--and assuming no new applicants file for asylum--it would take over two years to get through the current backlog. This is not good, and the Asylum Offices are now making changes to deal with the situation.
"Congratulations! It's finally your turn."
I've written before about the reasons for these delays. Primarily, it was due to a significant increase of asylum seekers from Central America arriving at our Southern border. As best as I can tell, the number of people coming here from Central America has not abated. Since most of these applicants are detained at government expense and because many of them are minors, their cases are given priority, at the expense of other asylum seekers.
So how were the Asylum Offices dealing with the increased volume, and what has changed?
Until December of last year, the Asylum Offices were attempting to process cases on a “last in, first out” basis. Meaning, they skipped over the old cases and tried to process new cases. The logic was that if they started with the old cases, processing times would be greatly increased for new cases. If an alien knows her case will take several years, she might decide to file a frivolous case, just for the Employment Authorization document ("EAD"). The slower the case moves--the thinking goes--the greater the incentive for such people to file false cases. The fear of frivolous applicants taking advantage of the system in this way is not unfounded.
In the 1980s and early 1990s, when a person filed for asylum, he received an EAD more quickly. At this time, there were massive delays and cases took many years. The combination of long waiting periods and quick EADs encouraged fraud. I heard one anecdote from an INS officer who remembered a U-Haul truck full of applications arriving for processing. They were all boilerplate cases from China, filed by the same (probably unscrupulous) attorney. Even if the cases were ultimately denied, the applicants would have an EAD and be able to live and work in the U.S. for several years. Of course, many cases during this period were legitimate. In those days, there were very brutal civil wars in several Central American countries. As a result, many people fled to the United States.
In 1995, the law changed so that asylum applicants had to wait 180 days before they were eligible for an EAD (though they could mail the application for the EAD after 150 days). This was intended to reduce fraud. I have my doubts as to whether this change made much of an impact, but as the civil wars to our South ended, refugee flows decreased, and the Asylum Offices slowly reduced wait times. By the time I went into private practice (in late 2003), asylum cases were interviewed a few months after filing, and most applicants received decisions a few weeks after the interview.
This all changed in early 2013, when large numbers of Central Americans--mostly young people--again began arriving at our border. The migration was not spurred by war, but by generalized violence from gangs and domestic abusers, as well as a failure by Central American governments to protect their citizens. The influx of new people overwhelmed the system and created the situation that we have today.
USCIS (the Asylum Office) has been struggling to keep up. Here is a recent announcement about their efforts:
The USCIS Asylum Division is hiring an additional 175 asylum officers, increasing the number of authorized asylum officer positions to 448. This represents a 65% increase since July 2013. As of January 2015, the Asylum Division has 350 officers on board and continues to hire and train new personnel. During 2014, USCIS also trained and temporarily detailed officers to the Asylum Division to assist with the increasing workload.
Unfortunately, their efforts have not been enough. As of December 26, 2014, they abandoned the "last in, first out" system. Now, the Asylum Offices will process cases in the following order of priority:
First, applications that were scheduled for an interview, but the applicant requested a new interview date;Second, applications filed by children; andThird, all other pending affirmative asylum applications will be scheduled for interviews in the order they were received, with oldest cases scheduled first.
In other words, aside from rescheduled cases and cases involving children, the Asylum Offices will now process old cases first. So what does this mean?
First, the good news. For those who have been waiting for two years for an interview, hopefully, your time is coming soon (though in my office, we have not yet seen any of our old cases scheduled).
Next, the bad news. If you are a new asylum applicant, you can expect to wait a long time for your interview. How long, we do not know, but I suspect that--even if they hire more officers, as they are trying to do--it will be at least a year. There are some minimal things to do to make a case faster (the "short list" and a request to expedite for emergent reasons), but generally it is very difficult to obtain a faster interview date.
And finally, the possibly bad news. We will see whether long delays encourage people to file more frivolous cases. If so, it will further clog the system.
As for me, of course I am rarely happy about change, and this change is no exception. I am glad that the government will start processing old cases. Those people have been waiting a long time. However, I wish they would give priority to people separated from their spouse and children--whether they filed two years ago or two days ago. It seems to me that single people can endure the wait much better. Like the old system, the new system does little to help people who are missing their family members, and to me, that is the real tragedy of the backlog.
Originally posted on the Asylumist: www.Asylumist.com.
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.
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...
Originally posted on the Asylumist: www.Asylumist.com.
"Bye, Mommy, I'll see you in high school."
I’ve written about the “backlog” a number of times. Essentially, as a result of large numbers of Central American youths arriving at our Southern border and seeking asylum, the system was overwhelmed and—though it didn’t exactly grind to a halt—there have been major delays for many applicants. The “surge,” as it is known, was not USCIS’s fault and, in fact, USCIS has worked hard to continue processing cases under very difficult conditions.
I’ve discussed before about some things USCIS could do to ease the burden on asylum applicants—prioritize applicants separated from family members, expedite following-to-join petitions once a case is approved, perhaps implementing “premium processing” for asylum applicants who can afford it—but lately I’ve noticed an unfortunate trend that USCIS needs to correct.
We’ve seen several of our clients’ applications for Advance Parole improperly handled or denied. Advance Parole is a document that allows an asylum applicant to leave the United States, travel to another country, and then return to the U.S. and continue her asylum application. When asylum applications generally took only a few months, Advance Parole was much less necessary. But now, when applications can take years, it is very important. In the era of the “backlog,” many asylum applicants face prolonged separation from spouses and children, not to mention parents, siblings, and friends. As you can imagine, these long separations are often the worst part of the whole process.
Advance Parole is a way to mitigate the difficulty of long separations. The applicant can obtain Advance Parole, travel to a third country to see her family members, and then return to the United States and continue her case. The application form itself (form I-131) asks whether the applicant plans to return to the country of feared persecution and—if the applicant returns to her country—it could result in a denial of asylum.
In recent weeks, we’ve been seeing two problems with USCIS decisions in Advance Parole cases. The first problem involves outright—and improper—denials of the I-131s. In these denials, USCIS claims that the I-131 must be denied because the applicant has not filed a concurrent form I-485 (application to adjust status to lawful permanent resident). In other words, because the asylum applicant has not filed for his green card, USCIS believes that he is not eligible for Advance Parole. This is simply incorrect: Asylum applicants are eligible for Advance Parole. See 8 C.F.R. 208.8. What is so frustrating about these denials is that we clearly indicated on the form I-131 that the person was an asylum seeker, and we included evidence of the pending asylum application; evidence that USCIS completely ignored. Not only do these denials prevent asylum applicants from seeing relatives (including relatives who are in very poor health), but they also waste money: The cost of an I-131 application is $360.00. To appeal the denial of an I-131 costs $630.00 (not counting any attorney’s fees) and takes many months, so it really is not worth the trouble and expense.
The second problem we’ve seen with Advance Parole applications is that USCIS has been requesting additional evidence about the purpose of the trip. So for example, where one client has a sick parent who he hopes to visit in a third country, it has not been enough to provide some basic evidence about the sickness (like a doctor's note or a photo in the hospital), USCIS has requested more evidence of the health problem. Why is such evidence needed? As applicant for asylum is eligible for Advance Parole. He can travel for any reason: To see a sick relative, to attend a wedding, to go to a professional conference. So why should USCIS need to see evidence that a relative is ill in order to issue the Advance Parole document? It is insulting and unnecessary; not to mention a waste of time. I suppose this type of request for additional evidence is better than an outright denial, but it is still improper.
What also been a source of frustration, is that we’ve filed three identical Advance Parole applications for a husband, a wife, and their child. We mailed the applications in the same envelope with the same evidence. So far, the husband’s was denied because there was no pending I-485, the wife was asked for additional evidence about her sick relative (so presumably USCIS believes she can travel despite the absence of a pending I-485), and the child’s has been transferred to a different office altogether and is still languishing there. They say that consistency is the Hobgoblin of small minds, but it would be nice if USCIS could get its act together on these Advance Parole applications. Real people are harmed because of the government’s confusion about how to process these cases. I don’t know if it is a training issue or something else, but USCIS should examine what is going on here.
As the backlogged cases drag on and on, foreign travel becomes more important for many applicants. The uncertainty surrounding the I-131 applications, and the inability to see family members, is only adding to the applicants' stress and frustration. Let's hope that USCIS can resolve the problem and give some basic relief to asylum applicants.
Originally posted on the Asylumist: www.Asylumist.com.
They say that those who do not learn from history are doomed to repeat it. In that spirit, I'd like to discuss some asylum cases that I've lost (or at least that were referred by the Asylum Office to the Immigration Court) and why the cases were not successful.
Remember: You can't spell "client" without "lie."
I am prompted to write about this topic by a recent, unpleasant experience at the Asylum Office. My client was an Iraqi man who claimed to have been kidnapped by a militia, which targeted him due to his religion. Unfortunately--and despite us directly asking him about his travels--the man failed to tell us that he had been to Jordan and applied for refugee status there through the UN. At the interview, the client again denied that he had ever been to Jordan, but then the Asylum Officer told him, "Service records indicate that you applied for refugee status in Jordan in 2011" (whenever an Asylum Officer begins a sentence with "Service records indicate...", you know you are in trouble). The client then admitted that he had been in Jordan for a year. At this point, it was obvious to me that things were only going to get worse from there, and so I recommended that the client end the interview immediately, which he did. That is the first time I ever had to end an interview in this way, and, frankly, it is pretty upsetting. The case has now been referred to court, where--if I continue as the attorney--we will have a mess on our hands. So what are the lessons?
First, and most obvious: Don't lie to your lawyer. In the above example, if the man had told me about his time in Jordan, we could have dealt with it. He didn't and so we couldn't. Unfortunately, many immigrants take the advice of their "community" over that of their lawyer. Asylum seekers need to understand the role of the attorney--it is our job to represent you in a process that can be confrontational, and so the government can use information from your past against you. If you don't tell your lawyer about past problems (especially when he specifically asks you), we cannot help you avoid those problems.
Another lesson is that the U.S. government often knows more than you think they know. If you have crossed a border, it's likely that the government knows about it. The Asylum Officer will have access to anything that you said during any previous contacts with the U.S. government (including during visa interviews). The Asylum Officer also probably has access to anything you said in interviews with other governments or the United Nations. So if you lied in a prior encounter with the U.S. government or any other government, you'd be well advised to inform your attorney. That way, he can try to mitigate the damage. Also, in asylum cases, where a person lies to obtain a visa in order to escape persecution, the lie is not necessarily fatal to the asylum claim. See Matter of Pula.
A different area where we see clients get into trouble is with family relationships. Sometimes, a client will say he is single when he’s married, or that he has five children when he has two. Of course, if the client listed different relatives on a visa application, the U.S. government will know about it, and the lie will damage the client’s credibility. Why would a client lie about this? The most generous explanation, which has the virtue of being true in some cases, is that the client considers the listed relative to be his child, but there is no formal adoption and the client does not understand the legal niceties of the question. In many societies, people who raise a relative’s child consider that child their own. As long as the client explains the situation and the Asylum Officer doesn't think the client is trying to hide something, she should be fine, but again, if the client doesn't tell the lawyer, the lawyer cannot properly prepare the case.
Speaking of family cases and cases where the government knows more than you'd think, I had one case where the woman got married, but did not list the marriage on her asylum form (and did not tell me). In fact, she really did not consider herself married--she signed a marriage contract, but never consummated the marriage, and she seemed to have put it behind her. Unfortunately for her, the Asylum Officer somehow knew that she was married. The result: Her case was denied and referred to court. Had she informed me (and the Asylum Office) that she was married, she likely would have been approved--her brother's case was approved under the same circumstances. So again, the lesson is that the government may know more than you think they know.
The bottom line here is that when preparing an asylum application, it is a bad idea to lie. The U.S. government knows a lot. How do they know so much? I don't know. Maybe ask Edward Snowden. But the point is, if you are filing an asylum application and you are not forthcoming with your responses, you risk losing your case.
Originally posted on the Asylumist: www.Asylumist.com.