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Jason Dzubow on Political Asylum

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  1. An Update on LIFO and the Asylum Backlog (or, The Fix that Wasn’t)

    On January 29, 2018, the Asylum Division changed the way it prioritizes cases. Since 2015, asylum applicants were being interviewed in the order that their cases were filed. Oldest cases first, followed by newer cases (“first in, first out” or FIFO). During this period, the number of people waiting for an interview—the backlog—grew and grew.

    Now, under the new system, cases are interviewed on a “last in, first out” basis or LIFO. This is basically the same system we had prior to 2015. The backlog began under the pre-2015 LIFO because the Asylum Offices did not have the people-power to interview everyone who applied for asylum. The result: Some cases were interviewed, while others “disappeared” into the backlog. Because this was unfair to “disappeared” applicants, the Asylum Division eventually switched to FIFO, which had the virtue of being more fair, but did nothing to ameliorate the backlog.


    Most experts believe the backlog will be resolved by the late 25th century. Biddi biddi biddi.

    Under the Trump Administration, what’s old is new again, and so we are back to LIFO. How is LIFO working out? Some new data from USCIS gives us an idea. The short answer, if you don’t have time to read this whole post, is that the backlog is not about to be resolved any time soon. So if you are currently stuck waiting for an asylum interview, you might want to get comfortable, as you’ll probably be waiting for a while (or you can try to expedite your case). If you have time to keep reading, let’s look at where we are, and how you can best navigate through LIFO-land.

    First, as of March 31, 2018, there were 318,624 asylum applications pending in the backlog. That’s “applications” not “applicants.” Since some applications include multiple family members, the number of people stuck in the affirmative asylum backlog is probably quite a bit higher than 318,624.

    In response to the backlog, the Asylum Division has taken several actions. For years now, they’ve been staffing up. According to a recent report from the USCIS Ombudsman, since FY 2016, the number of Asylum Officers has increased from 533 to 686 (and they continue to hire – if you want to sign up, check out this job posting). Since we've dramatically reduced the number of refugees coming to the U.S., Refugee Officers have more free time, and so they are being rotated through the Asylum Offices on 12-week stints. We are also expecting a new National Vetting Center (in 2019 or 2020) that will deal with security checks and fraud issues, in order to free up more time for Asylum Officers to do their work. All these changes should allow the Asylum Offices to process more cases.

    We also now have LIFO. Under this system, the Asylum Offices prioritize cases as follows: First priority are rescheduled interviews, whether the interview was rescheduled by the Asylum Office or the applicant. Second priority are asylum applications that have been pending less than 21 days. This does not mean you will receive an interview within 21 days of filing. Rather, cases less than 21 days old will receive priority to be scheduled for an interview. Third priority are all other affirmative cases, including the 318,624 currently in the backlog.

    According to the Ombudsman’s report, not all new cases will receive priority for an interview:

    Cases subject to interviews at “circuit ride” locations (generally a USCIS field office situated closer than the asylum office to an applicant’s residence) will not fall under the 21-day time frame. Rather, the Asylum Division will schedule these cases for interviews as resources permits.

    This means that if you want a quick interview, you have to live in a location that is covered by one of the main offices or a sub-office (Arlington, Boston, Chicago, Houston, Los Angeles, Miami, Newark, New York, New Orleans or San Francisco), as opposed to a “circuit ride” location, which is a USCIS field office that is visited periodically by Asylum Officers (there are many, but some examples are Atlanta, Buffalo, and Seattle). I do not know of an on-line listing of areas covered by circuit ride locations, but I suppose you can email your Asylum Office to ask. If you live in a circuit-ride area, you can ask to be interviewed in a main office--sometimes they accommodate such requests.

    Assuming you file at one of the main or sub-offices, the likelihood of actually receiving an interview (as opposed to disappearing into the backlog) varies by office. The chart below is based on very preliminary data from the Asylum Division. It shows the (very approximate) likelihood of having your case interviewed in each office.

    In the chart, “New Cases Filed” is the number of asylum cases filed in that particular office for March 2018. “Interviews” is the number of interviews actually conducted in March 2018 (as opposed to the number of interviews scheduled and then canceled, which is quite a bit higher). The percentage figure is the rough likelihood that an applicant in that particular office would have received an interview in March 2018. And the “Completed” column shows how many cases were completed during the month, which—when compared to the number of cases filed—gives an idea of how much the backlog grew or shrunk in that office for March 2018 (the +/- in the Completed column).

    Office New Cases Filed Interviews Completed
    Arlington 920 494 / 54% 408 / +512
    Boston 289 132 / 46% 178 / +111
    Chicago 550 675 / 100% 550 / +0
    Houston 751 583 / 78% 504 / +247
    Los Angeles 997 708 / 71% 1,243 / -246
    Miami 2,219 798 / 36% 920 / +1,299
    Newark 668 792 / 100% 865 / -197
    New York 802 690 / 86% 883 / -81
    New Orleans 206 166 / 81% 280 / -74
    San Francisco 653 529 / 81% 687 / -34

    There are some caveats to this chart. First, I compare new cases filed with cases interviewed to determine the likelihood that you will receive an interview in that particular office. This is an apples/oranges comparison since we don’t know how many of the interviews were newly filed cases, as opposed to rescheduled interviews or expedites. Worse, the cases interviewed were probably filed in January or February, since it takes some time to actually schedule the interview. This makes the comparison even less reliable. Second, this data is for only one month, and March was probably not a “normal” month, in that the system was still adjusting to the change from FIFO to LIFO. So how useful this chart is for predicting the likelihood of an interview going forward, I do not know. Finally, this chart was prepared by me. Using math. Since I’m no Ramanujan, you should take all this with a big grain of salt.

    That said, this is the best data we have, and maybe we can draw some tentative conclusions. For one, the backlog is generally growing, not shrinking. However, this varies by office. If your case is stuck in an office where the backlog is growing, it is unlikely that you will get an interview any time soon. If you are in an office where the backlog is shrinking, maybe you will eventually receive an interview. Also, if you are a new applicant and you want an interview quickly, you may be better off filing in Chicago or Newark, since they seem to be interviewing pending cases faster than they are receiving new cases (conversely, if you want a slower interview schedule, you are better off living in an area covered by a circuit ride location or an office where the backlog is growing). Again, all this is quite preliminary, and we will have to see how things progress when they release the next batch of data in a few months.

    Another bit of information we can glean from the Ombudsman report is that local asylum offices “report a 25 percent drop in affirmative receipts in the immediate aftermath of the change to LIFO scheduling." The implication/hope is that the new LIFO system is deterring people from filing frivolous asylum claims. I think there is another, more likely explanation, however. In my office, for example, when the Asylum Division switched from FIFO to LIFO, we stopped filing cases for a few months in order to adjust how we filed (under FIFO, we filed a bare-bones application, consisting of the I-589 form and the passport; under LIFO, we file a complete case, which takes much longer to prepare). My guess is that once people adjust to LIFO, there will be little change in the number of cases being filed (of course, since fewer aliens are coming to the U.S. these days, we can expect fewer asylum applications for that reason).

    One final piece of news is a pilot program to refer one-year bar cases directly to the Immigration Court without an interview. The Asylum Division has identified up to 50,000 pending cases where the applicant entered the U.S. more than 10 years before filing for asylum. Such people may have filed for asylum in order to be referred to Court, where they will seek other relief (most notably, Cancellation of Removal). So far, the Asylum Division has contacted about 1,500 such people, and given them the option to skip the interview and go directly to Court. Depending on the case, and the person's goals, this may be an attractive option for some, though I suspect anyone with a real fear of returning to the home country will prefer to have an asylum interview.

    So there you have it. It is probably too soon to draw any firm conclusions from the data at hand, but based on what we know so far, it seems likely that the backlog will be with us for the long term. Keeping informed about the Asylum Office's statistics and policies may allow some applicants to increase their chance for an interview. As more data becomes available, I will try to post that information here.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, backlog Add / Edit Tags
  2. The Last-In, First-Out Policy Ain't Exactly Last-In, First-Out

    It's been a month since the Asylum Division surprised us by changing from a first-in, first-out (FI-FO) system to a last-in, first-out (LI-FO) system. Under the new system, cases were supposed to be interviewed in the following order of priority: (1) Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS; (2) Applications that have been pending 21 days or less; and (3) All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings. So in other words, the Asylum Offices would interview newly filed cases first; then, if they had extra time, they would interview recently filed cases, working their way backwards through the backlog.

    How's the new LI-FO system working out for you?


    We're now a month in, and the new system is not working exactly as advertised. In our office, for example, we had one client whose case was filed in mid-January 2018. The case was scheduled for an interview earlier this week (we postponed it, as we needed more time to gather evidence). This is about what we expected under the LI-FO system. Another client, whose case was filed in August 2014 was scheduled for an interview in mid-March. The Asylum Office mailed out the interview notice in mid-February, at a time when LI-FO should have been in place. This is not what we were expecting. So what the heck is happening?

    It turns out that different Asylum Offices are implementing the LI-FO system in different ways. In a conference call with AILA (the American Immigration Lawyers Association), the Asylum Division informed us that if they do not have enough new cases to fill their schedule, Asylum Offices will interview cases from the backlog. The different offices apparently have the authority to decide which backlogged cases they will choose to interview--old cases, new cases or (I guess) whatever cases they feel like interviewing.

    In my local office--Arlington, Virginia--it seems they are interviewing old backlog cases--from 2014. This is contrary to the interview priorities published on January 31, 2018, where the Asylum Division indicated they would work their way backwards through the backlog. It sounds like other Asylum Offices will interview newer backlogged cases--from January 2018 or December 2017, in conformity with the published priorities.

    On one level, my preference is that the Asylum Offices interview older cases first, as that seems more fair. But frankly, at this point, my main concern is that they just make a decision and stick with it. It's bad enough that the Asylum Division announced a surprise change and basically upended the expectations of asylum seekers (and their lawyers). But now, it seems they can't even follow their own policy.

    For advocates, including yours truly, this makes it very difficult to know how to prioritize cases and advise clients. Worse, so much uncertainty makes it even more difficult for asylum seekers to endure the long waits.

    Of course, all things pass, and my guess is that we are currently in a period of transition. After the recent change to LI-FO, many attorneys and applicants stopped filing cases. Prior to the change, we were filing bare-bones asylum applications with the intention of finishing the cases later, as the interview date approached. But now, given the (supposed) short time between filing the case and receiving the interview, we have to file completed cases. It takes more time to prepare complete cases, and so we are adjusting how we do things. As a result, fewer cases are being filed and the Asylum Offices have a brief pause to work on backlogged cases.

    However, once everyone re-calibrates, I expect the volume of new asylum applications will return to normal, and the Asylum Offices will probably be interviewing new cases, and maybe--if we're lucky--some cases from the backlog.

    Once things settle down, it would be nice to know how the different Asylum Offices plan to interview backlog cases going forward. That way, asylum seekers will have some idea what to expect, and attorneys can advise their clients and manage their caseload. In this sense, the now-defunct Asylum Office Scheduling Bulletin was quite helpful. At least we had some idea about what was going on.

    My hope is that the Asylum Offices will choose to provide us with some information about how they are operating. This shouldn't be all that difficult since each office has its own website. Indeed, whether they are moving through their backlog from oldest to newest or from newest to oldest, I don't see why they can't simply tell us where they are.

    And while I'm wishing, maybe they can also give other useful information on their website, like the deadlines for filing evidence and the procedures for rescheduling, expediting, and short-listing. Repeat customers like me already know the rules, but pro se applicants don't, and there is currently no easy way for them to find out. Why not simply post this information on the Asylum Office website for everyone to see?

    I know that all this is probably asking for too much. I also know that the Asylum Offices are in a tough spot these days. The Trump Administration is clearly hostile to their mission of protecting bona fide refugees, and anything they do to make the process more user-friendly might come back to bite them. Also, they are potentially on the cusp of a massive surge in new cases, if nothing is done for DACA or TPS recipients. Nevertheless, it would be nice if they could follow the policy that they announced less than a month ago. Or, if they don't plan to follow the policy, at least keep everyone informed about what they are doing.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, backlog Add / Edit Tags
  3. The Asylum Office Is Getting Tougher (Probably)

    Last week, the Asylum Division changed the way it processes cases. Instead of interviewing asylum cases in the order they were filed (first-in, first-out), cases will now be interviewed on a last-in, first-out or LI-FO basis. We've been learning more about the reasons for this change, and I want to share what I've heard here. But before I get to that, I want to discuss another important change that has recently become apparent: The dramatic drop in grant rates for cases at most asylum offices.


    The new Asylum Officer training regimen.


    The below chart compares asylum approval rates at the various asylum offices for the months of December 2016 and December 2017 (the most recent month when data is available). Admittedly, this is a snapshot of events, and an imperfect snapshot at that. Nevertheless, I think it illustrates a larger trend.

    The left number in each column represents the number of cases approved during the month. The number on the right is the number of cases completed. The percentage shows the percentage of cases approved in that office. So in December 2016, Arlington approved 89 cases out of 317 completed, meaning that 28% of completed cases were approved. Conversely, 72% of applicants were denied asylum or referred to court, but that includes people who failed to show up for their interview, so the denial rate for people who actually appear is not as bad as it seems from the chart (as they say, in life, eighty percent of success is showing up). With that out of the way, here are the stats:


    Asylum Office December 2016 December 2017
    Arlington 89/317 (28%) 80/276 (29%)
    Boston 45/108 (42%) 27/168 (16%)
    Chicago 75/186 (40%) 80/362 (22%)
    Houston 28/119 (24%) 58/437 (13%)
    Los Angeles 258/528 (49%) 389/1195 (33%)
    Miami 73/243 (30%) 76/650 (12%)
    Newark 118/358 (33%) 155/866 (18%)
    New York 103/496 (21%) 87/858 (10%)
    New Orleans 41/83 (49%) 83/188 (44%)
    San Francisco 219/303 (72%) 196/429 (46%)
    United States 1049/2741 (38.3%) 1231/5429 (22.7%)


    So you can see that asylum grant rates are pretty dramatically down at most offices, and that for the entire country, they are down about 40% (from 38.3% to 22.7%) (you can see the source for these statistics here for 2016 and here for 2017). While the various grant rates could represent anomalies, they comport with larger trends, as shown in the next chart, which lists grant rates for the U.S. as a whole over the last few years:


    Fiscal Year Asylum Grant Rate
    FY 2015 45%
    FY 2016 41%
    FY 2017 34%
    FY 2018 26%


    You can see from this chart that asylum grant rates have been dropping since FY 2015 (which began on October 1, 2014), but the decrease is more pronounced in the two most recent fiscal years (and of course, we are only a few months into FY 2018). Further, if the December 2017 data is any indicator, the grant rate is continuing to drop.

    My first question--and be forewarned, I don't really intend to answer these questions--is, Why is this happening? The temptation is to attribute the drop to President Trump's anti-immigrant agenda, but I don't find that explanation very convincing. First, grant rates began to fall long before Mr. Trump took office. Second, even after he was sworn in--in the second quarter of FY 2017--it takes months to implement new policies. Most asylum officers were hired pre-Trump, and that was especially true in FY 2017, since it takes time to hire and train new people. In addition, I have not observed any real changes in the pool of asylum officers that I meet (then again, the grant rate at my local office--Arlington--seems to have held steady, at least as illustrated in the first chart).

    So if it's not President Trump, what's going on? One possibility--and I suspect this is the explanation that the Asylum Division favors--is that a higher portion of cases interviewed in recent years are meritless. In other words, as the backlog grew and delays became longer, people with weak cases were incentivized to file for asylum in order to get their employment authorization document ("EAD"). These people knew that their cases would take years, and so they filed mostly to obtain some status here and work legally. But now, as more and more of these people are reaching the interview stage, their cases are being denied. There is some evidence for this theory--according to the Asylum Division, of the 314,000 backlogged asylum cases, 50,000+ applications were filed more than 10 years after the applicant entered the United States. For various reasons, such cases are more likely to be meritless, and--even if they are legitimate--they are more likely to be denied due to the one year asylum filing deadline.

    If this second explanation is correct, then perhaps there will be a silver lining to the recent change in how asylum cases are interviewed. If people get faster interviews, maybe fewer meritless applicants will seek asylum.

    Whether or not this will work, we shall see. But a test is soon coming (probably). The Trump Administration has ended TPS (Temporary Protected Status) for El Salvador and other countries. It has also terminated the DACA program. This means that in the absence of a legislative fix, hundreds of thousands of people will have no way to avoid deportation other than to go into hiding or to seek asylum. You can bet that many of them will seek asylum (and indeed, given the violent countries from whence they came, many have legitimate reasons to fear return).

    We know from a recent meeting at the Arlington Asylum Office that the end of TPS and DACA were two reasons for changing to the FI-LO process. But whether this new procedure will stem the potential tidal wave of applications, I have my doubts.

    All this brings us to the final question (for today)--What does this mean for asylum seekers? As usual, I don't have a good answer. People filing now can probably expect an interview soon and should submit all evidence so they are ready for the interview. However, if volume is too high, not everyone will get an interview. My impression is that if the interview is not scheduled within 21 days of receiving the receipt, then the case will "disappear" and will only be interviewed once the Asylum Office starts working on backlogged cases. It's likely that some cases will disappear, since the number of people seeking asylum is still out-pacing the government's ability to interview applicants. Also, there are (once again) increasing numbers of asylum seekers arriving at the U.S./Mexico border, and the Asylum Offices must devote resources to those cases as well.

    Local offices control the expedite process and the short list, and it seems that most offices will continue to offer those options. However, the Asylum Division is expecting fewer "no shows" with the new system, and so there may be less slots available for expedited or short-listed cases.

    Finally, under the pre-December 2014 system, when an asylum case was sent to Immigration Court, the judge would schedule a quick hearing date for any applicant who had not yet received his EAD (in an effort to dissuade meritless applicants from seeking asylum merely to get an EAD). It looks like the Immigration Courts will again be doing this same thing, and so if you have a fast asylum interview and you are referred to court, you should be prepared for a fast hearing date in court.

    For what it's worth, my impression is that the Asylum Division is well aware of the pain it will inflict by re-ordering how asylum cases are interviewed. But they are looking at the "big picture" and they hope that changing to a FI-LO system will reduce meritless applications and ultimately benefit legitimate asylum seekers. I hope they are correct, but until then, I fear things will be worse before they get better.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, backlog Add / Edit Tags
  4. Bye Bye Scheduling Bulletin, Hello Chaos!

    By now, you may have heard that the Asylum Division--in a surprise move--has changed the order in which cases will be interviewed. This means that new cases, filed after January 29, 2018, will be interviewed before older, pending cases.


    "Sorry, the front of the line is now over there... I guess..."


    To understand what's happening, let's review a bit of history. Since the mid-1990s, when an asylum case was submitted, the Asylum Office attempted to interview the applicant within a couple months. But as the number of applicants increased, the Asylum Office was less able to handle the volume. Further, starting in maybe 2011 or 2012, large number of asylum seekers began arriving at the U.S./Mexico border and requesting protection (many of these applicants were "unaccompanied minors" - i.e., children without parents - whose cases received priority). In addition to their normal workload, Asylum Officers were assigned to assess these border cases and administer a credible fear interview (an initial evaluation of asylum eligibility). All this resulted in an inability to keep up with affirmative asylum applications. The result was The Backlog.

    In my part of the country, the backlog began in probably 2012. We would mail asylum cases as normal. Some applicants would be interviewed within two months; other cases disappeared. Of the cases we mailed, about 60% were interviewed and 40% disappeared.

    Although the Asylum Division recognized the problem, they were reluctant to change the way they processed cases. Their fear was that if they interviewed cases in the order received, all cases would move slowly. This would create an incentive for more people to submit fraudulent applications, knowing that their interview would be delayed and that they could remain in the United States for years with a work permit (150 days after she files for asylum, an applicant can apply for an employment authorization document). The problem, of course, was that cases in the backlog (the ones that "disappeared") would never be adjudicated, and would remain in limbo forever.

    Then, in December 2014, the Asylum Division decided to try a new approach: They would interview the oldest cases first. In a sense, this was more fair, as it gave people with "disappeared" cases a chance for an interview. At about the same time, the Asylum Division created the Affirmative Asylum Scheduling Bulletin. Now, for each asylum office, we could see who was being interviewed based on the date the application was filed. This at least gave applicants some sense of how their cases were progressing.

    Whether the new system worked, or whether it encouraged fraudulent applicants who only wanted work permits, I do not know. I do know that cases have been moving very slowly since December 2014. I believe this is largely due to the prioritization of cases--unaccompanied minors and credible fear interviews received priority over "regular" asylum applicants, and since there were a lot of these, the Asylum Office has been crawling through its backlog of regular cases. We could see what was happening (or not happening) on the Affirmative Asylum Scheduling Bulletin.

    Enter, the Trump Administration, which views asylum seekers as fraudsters. USCIS (which oversees the Asylum Division) announced the change in policy yesterday, and the change is retroactive--all cases filed on or after January 29, 2018 will (supposedly) be interviewed within 21 days. There is, of course, a caveat: "Workload priorities related to border enforcement may affect our ability to schedule all new applications for an interview within 21 days," says USCIS.

    According to USCIS, the new priorities are as follows:


    • First priority: Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS.
    • Second priority: Applications that have been pending 21 days or less.
    • Third priority: All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings


    From this, it appears that unaccompanied minors will no longer be a priority, which may make things faster for "regular" applicants. Also, it appears that the system for requesting expedited interviews will remain in place: "Asylum office directors may consider, on a case-by-case basis, an urgent request to be scheduled for an interview outside of the priority order listed above" (I previously wrote about expediting affirmative asylum cases here). Finally, since cases are being interviewed on a "last in, first out" basis, there is no longer a need for the Asylum Office Scheduling Bulletin, and so USCIS has eliminated it (though wouldn't it be nice if they used that website to provided updated information about what they are doing?).

    USCIS has made the reasons for the change pretty clear: "Returning to a 'last in, first out' interview schedule will allow USCIS to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings." Presumably, it will also allow legitimate cases to be granted more quickly, which may be good news for people planning to file for asylum in the near future.

    Rumor has it that other changes are coming to the asylum system, but what they are, we do not yet know. Given the government's view that many asylum seekers are fraudsters, I can't imagine that such changes--if any--will be positive, but we shall see.

    There is a lot to say about this new change, but for now, I want to urge people to remain cautious. We will have to see how this plays out in the coming weeks and months. Obviously, if you are a new asylum seeker, or if you filed recently, you need to complete your entire case now, so that you are ready if an interview is scheduled quickly. If you have a case in the backlog, and are now losing hope of ever receiving an interview, you should try to be patient--it may be that because unaccompanied minors are no longer a priority, and because fewer asylum seekers are arriving at the Southern border, cases will begin moving more quickly. Only time will tell, and if I have any news, I will try to post it here.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, backlog Add / Edit Tags
  5. The Asylum Backlog, Revisited (Ugh)

    I haven't written about the asylum backlog in awhile. Mostly, that's because the subject is too depressing. Cases are taking years. Many of my clients are separated from their spouses and children. A number of my clients have given up, and left the U.S. for Canada or parts unknown. The backlog has also made the job of being an asylum attorney more difficult and less rewarding--both financially and emotionally. That said, I suppose an update on the backlog is overdue. But I warn you, the news is not good.
    “Let’s talk about the asylum backlog… again.”

    The most recent report from the USCIS Ombudsman—which I have been trying not to look at since it came out in June—indicates that the affirmative asylum backlog (the backlog with the Asylum Offices, as opposed to the Immigration Court backlog) has increased from 9,274 cases on September 30, 2011 to 128,303 cases as of December 31, 2015. This, despite significant efforts by the Asylum Division, and the U.S. government, to address the issue.


    The Ombudsman’s report lists five main reasons for the dramatic increase in backlogged cases: (1) high volume of credible and reasonable fear interviews; (2) a rise in affirmative asylum filings; (3) increased numbers of filings with USCIS by unaccompanied minors in removal proceedings; (4) the diversion of Asylum Office resources to the Refugee Affairs Division; and (5) high turnover among asylum officers. Let’s take a closer look at what’s going on.


    First, the number of credible and reasonable fear interviews at the border have increased significantly over the last several years (when an asylum seeker arrives at the border, she is subject to a credible or reasonable fear interview, which is an initial evaluation of asylum eligibility). The numbers for FY 2015 were slightly down from a high of about 50,000 interviews in FY 2014, but FY 2016 looks to be the busiest year yet in terms of credible and reasonable fear interviews. The reasons that people have been coming here in increased numbers has been much discussed (including by me), and I won’t re-hash that here. I do suspect that the upcoming election—and talk of building a wall—is causing more people to come here before the door closes. Maybe after the election, regardless of who wins, the situation will calm down a bit.


    Second, the number of affirmative asylum applications has also increased. There were 83,197 applications in FY 2015—up 130% from FY 2011. There are probably many reasons for the increase, but I imagine the chaotic situation in the Middle East, violence in Central America and Mexico, and political persecution in China are important “push factors.” The relatively strong U.S. economy and the presence of ethnic communities already in the United States are a few factors “pulling” migrants to our country.


    Third, an increased number of minors in removal proceedings have been filing their cases with the Asylum Division. Unaccompanied minors who have a case in Immigration Court are entitled to a non-confrontational asylum interview at the Asylum Office. The number of these children requesting an interview has increased from 718 in FY 2013 to 14,218 cases in FY 2015, and these cases have added to the Asylum Division’s case load.


    Fourth, President Obama has increased the “refugee ceiling” from 70,000 to 85,000. In order to process these cases and bring the refugees from overseas, the Refugee Affairs Division has been borrowing asylum officers—about 200 such officers will be sent to the RAD for two months stints. And of course, if they are working on refugee cases, they cannot be working on asylum cases.


    Finally, the Asylum Division’s efforts to reduce the backlog have been hampered by a high turnover rate among Asylum Officers. According to the Ombudsman’s report, the attrition rate for Asylum Officers was 43% (!) in FY 2015. Some of the “attrition” was actually the result of officers being promoted internally, but 43% seems shockingly high.


    As a result of these factors, wait times have continued to grow in most offices. The slowest office remains Los Angeles, where the average wait time for an interview is 53 months. The long delays in LA are largely because that office has a high proportion of credible and reasonable fear interviews (“CFIs” and “RFIs”). New York, which is the only office where wait times have decreased, has an average wait time of just 19 months. The NY office does not have a detention facility within its jurisdiction, and so there are fewer CFIs and RFIs. As a result, the NY office is better able to focus on “regular” asylum cases and can move those cases along more quickly.


    The Ombudsman report also discusses post-interview wait times, which stem from “pending security checks, Asylum division Headquarters review, or other circumstances.” The wait time between a recommended approval and a final approval has increased from 83 days in FY 2014 to 105 days for FY 2016. Also, the delay caused by Headquarters review has increased to 239 days in FY 2016 (I wrote about some reasons why a case might be subject to headquarters review here). In my office, we have been seeing delays much longer than these, primarily for our clients from Muslim countries.


    The report discusses delays related to Employment Authorization Documents (“EADs”). Regulations provide for a 30-day processing time for EADs, but USCIS “regularly fails to meet” that deadline. Indeed, the processing time for EADs at the Vermont Service Center is “at least 110 days,” which—based on my calculations—is somewhat longer than the 30-day goal. One improvement in this realm is that EADs for asylum applicants will now be valid for two years instead of one (this change went into effect earlier this month). If EADs are valid for a longer time period, USCIS will have fewer EADs to renew, and hopefully this will improve the overall processing time.


    The Asylum Division has responded to this mess by (1) hiring new officers; (2) establishing new sub-offices; (3) publishing the Affirmative Asylum Scheduling Bulletin (I discuss why the Bulletin is not a good predictor of wait times here); and (4) developing new EAD procedures.


    The number of new Asylum Officers has increased from 203 in 2013 to over 400, as of February 2016, and USCIS was authorized to employ a total of 533 officers in FY 2016. USCIS has also been trying to mitigate the high level of turnover. They created the “Senior Asylum Officer” position, which, aside from offering a fancy title, may allow for a higher salary, and they have scaled up their training programs in order to get more officers “on line.”


    In addition, USCIS has opened new sub-offices, including one in Crystal City, Virginia, which will (hopefully) employ 60 officers to conduct exclusively CFIs and RFIs by phone or video link. Supposedly, the Crystal City office will assist Los Angeles with its CFIs and RFIs in an effort to reduce the close-to-eternal backlog in that office.


    Finally, USCIS is trying to improve the EAD process. One change is that applicants who move their case from one Asylum Office to another will no longer be penalized for causing delay. Previously, if an applicant caused delay, her Asylum Clock would be stopped and she could not get her EAD. USCIS has also proposed a rule change so that an applicant’s EAD will automatically be extended when she files for a new card. I wrote about this proposed (and much-needed) change almost one year ago, and it has yet to be implemented. Lastly, as mentioned, EADs are now valid for two years instead of one.


    So there you have it. There is no doubt that USCIS and the Asylum Division are making efforts to improve the situation. But unless and until the crisis at the border subsides, it seems unlikely that we will see any major improvements in the way cases are progressing through the system. So for now, we will wait, and hope.

    Originally posted on the Asylumist: www.Asylumist.com.
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