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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.
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."
Originally posted on the Asylumist: www.Asylumist.com.
Language is intensely personal. When I say the word "house," I have one image in mind, and when you hear it, you have your own image in mind. Indeed, every person on Earth who hears the word "house" will have his own mental image of what that means. Despite all this, we manage to communicate.
The "comfy chair" constitutes persecution only in the Ninth Circuit.
But when we move from interpersonal communication to the more precise language of the courts, the problem becomes more acute. Perhaps it was best summed up by Supreme Court Justice Potter Stewart, who famously declined to define the term "p0rnography." Instead, he stated, "I know it when I see it" (less well-known was his next line: "And I enjoy seeing it at least twice a day").
In asylum law, we have a similar problem--not with p0rnography, heaven forbid--but with another "p" word: "persecution."
"Persecution" is not defined by statute, and the Board of Immigration Appeals--the agency tasked with interpreting the immigration law--has failed to provide much useful guidance (as usual). And so the buck has been passed to the various federal circuit courts.
A recent article by Scott Rempell, an Associate Professor at South Texas College of Law/Houston, surveys the landscape with regards to definitions of "persecution." Prof. Rempell finds that while certain conduct is universally viewed as persecution, there exists "staggering inconsistencies" between the various federal appeals courts: "eleven different appellate courts independently pass judgment on EOIR’s assessments of whether harm rises to the level of persecution—a significant number of spoons stirring the persecution pot." The study revealed what Prof. Rempell calls an "unequivocal chasm" in the consistency of persecution decisions:
For example, the results [of the study] illustrate how a one-day detention involving electric shock compelled a finding of persecution, while a ten-day detention involving electric shock did not. Similarly, while several weeks of psychological suffering necessarily established persecution, several years of even greater psychological suffering failed to cross the persecution threshold.
To those of us who have litigated these cases in the federal courts, Prof. Rempell's observation rings all-too true. But quantifying the problem is quite difficult because, as Prof. Rempell notes, the cases are so fact-specific:
Courts... compare and contrast to previous persecution cases. And due to differing opinions on what the harm threshold should be, panels are free to emphasize or deemphasize any factual nuance they choose between the cases that they are reviewing and previous cases they have decided.
Despite this problem, the article attempts to categorize the different types of harm and discern areas of consistency and inconsistency. Prof. Rempell finds five broad areas of consistency--conduct that all courts consider persecution:
(1) Brutal and systematic abuse, where the applicant has sustained harm on a consistent basis over a prolonged period of time; (2) Sufficiently Recurrent Combination of Cumulatively Severe Harms, where there is an ongoing pattern of physical, psychological, and other types of harm, as long as the harms cumulatively establish a sufficiently high level of severity; (3) Recurrent Injury Preceding a Harm Crescendo, where there are multiple incidents of relatively severe harm that culminates in particularly egregious harm; (4) Sufficient Harm Preceding a Substantiated Flight Precipitator, where a series of harmful events culminates in a credible and substantial threat of harm, causing the applicant to flee; and (5) Sufficiently Severe or Recurring Sexual Abuse.
The problem with this list (aside from the fact that I did not give you all the details of the Professor's analysis) is pretty obvious--we are stuck using words to describe harm, and this is difficult. One person's idea of "brutal and systematic abuse" may not be the same as the next person's. Nevertheless, the list gives us the broad parameters of what constitutes persecution in all federal courts.
When the persecution is less severe--as it is in most contested cases--things become even more tricky. Prof. Rempell identifies four areas where the appellate courts produce inconsistent decisions:
(1) A single instance of physical abuse and detention; (2) Psychological harm where there is a single fear-inducing incident; (3) Psychological harm where there are continuous fear-inducing incidents; and (4) "Other Harm Inconsistencies," where courts looked at similar incidents and reached opposite conclusions concerning persecution.
The disparities between judges and circuits when it comes to determining persecution are stark. For example, the First Circuit (New England) reversed the BIA's persecution finding in just 5% of cases. The Ninth Circuit (California, et al) reversed the BIA's findings in 65% of cases.
Prof. Rempell attributes much of the disparity to "the way courts interpret the meaning of persecution, and how they characterize and measure harm." "The fact that decades of adjudications involving over a million asylum claims have failed to yield a consistent approach on the systematic harm question is nothing short of astounding." So what's to be done?
The article suggests some preliminary reforms, but the bottom line is this: Immigration agencies--and specifically the Board of Immigration Appeals--need to provide "guiding principles" on what constitutes persecution. Of course these inquiries are fact specific, and of course it is difficult to quantify physical or psychological harm, but as Prof. Rempell says, the "fact-intensive nature of persecution inquiries... should not act as a shield to prevent the creation of general severity principles, by means of regulation or adjudication."
As a lawyer who frequently encounters the question "What is persecution?," I believe Prof. Rempell's article is important. He has quantified a problem that we have all experienced in our practice. Now it's time for the BIA to do something about it.
Originally posted on the Asylumist: www.Asylumist.com.
For some time now, we've been hearing from the Asylum Division that they would post a "Scheduling Bulletin" to give affirmative asylum seekers a better idea about wait times. Well, the Bulletin has finally arrived, which is--in a sense--good news. But it's also bad news, since now we see exactly how slowly things are progressing at most asylum offices.
First off, if you're curious about the status of your asylum office, check out the Bulletin here. What you'll see is a breakdown of each asylum office and which cases they are currently interviewing (as of July 2015). So, for example, in July 2015, the Arlington Asylum Office was interviewing cases originally filed in August 2013. The chart also lists which cases each office was interviewing over the past few months, so you can see how quickly (or not) each office is moving through its cases.
Most geologists agree: The asylum offices are moving pretty quickly (except for Los Angeles).
Reviewing the Bulletin, a few things jump out at me. First, and most distressing, cases are moving very slowly at most asylum offices, and a few offices--notably Chicago, Los Angeles, and Miami--have made no discernible progress in the last four months. One mitigating factor here is that it's summer, a time when the Southern border is particularly busy. Hopefully, once the number of asylum seekers arriving at the border wanes (as it generally does in autumn), the asylum offices will start interviewing more backlogged cases (if you are not familiar with the "asylum backlog," please see this posting).
Another point worth noting is that the two asylum offices with jurisdiction over the Southern border states--Los Angeles and Houston--represent the slowest and the fastest offices, respectively. Los Angeles is currently interviewing cases filed in August 2011 (which is slower than I realized--I had thought they were interviewing cases from 2012) and they have been stuck on the August 2011 cases for the last four months. On the other hand, Houston, Texas is the fastest asylum office. They are interviewing cases filed in April 2014, though they have made almost no progress in the last four months either. What's strange is that there is such disparity along the Southern border. I do not know why resources cannot be distributed more evenly to give some relief to asylum seekers at the LA office.
The only asylum office that has shown significant movement over the last four months is New York. In April 2015, the NY asylum office was interviewing cases filed in January 2013. By July 2015, they were interviewing cases filed in June/July 2013. Newark, New Jersey has also done reasonably well, advancing from December 2012 to April 2013 during the same period.
Rescheduled cases and cases involving children (many of the asylum seekers at the Southern border are children) receive priority over "regular" asylum cases. And according to the Bulletin, the asylum offices in Chicago, Houston, Los Angeles, and Miami have had many such cases. Presumably this explains the lack of progress in those asylum offices.
Finally, for people with cases pending at one of the sub offices, the Bulletin notes that it "currently does not include asylum interviews occurring outside of the eight asylum offices or the Boston sub-office (e.g. interviews occurring on circuit rides)." "Asylum offices schedule circuit ride interviews as resources permit." The Bulletin suggests that applicants contact the "asylum office with jurisdiction over your case for more detailed information" about the schedule at sub offices. You can find contact information for each asylum office here.
So there you have it. The Bulletin will be updated monthly so you can track how quickly each asylum office is moving through the backlog. Though the current situation is discouraging, at least the Bulletin provides some information about where we stand now, and maybe some hope for those who are waiting.
Originally posted on the Asylumist: www.Asylumist.com.
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:
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:
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:
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.
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:
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.
Originally posted on the Asylumist: www.Asylumist.com.