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Jason Dzubow on Political Asylum

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  1. Your Affirmative Asylum Case Was Denied. Now What? (Part 2: Immigration Court and Beyond)

    This is part 2 of a posting about what happens if the Asylum Office denies your affirmative application. Read part 1 here.


    The view from the Judge's seat in Immigration Court.


    If the Asylum Office denies your asylum case and you are no longer “in status,” you will be referred to an Immigration Court. When you get the denial (which they politely call a Referral), it will contain a short letter with a (usually) boilerplate explanation about why the case was not granted. Along with the letter, you will receive a Notice to Appear (“NTA”), which explains why the U.S. government believes it can deport you. If you have dependent family members, each of them should also receive an NTA (assuming they are all out of status).

    The NTA contains allegations and charges. The allegations usually begin, “(1) You are not a citizen or national of the United States; (2) You are a citizen and national of [your country]; (3) You entered the United States on [date and place],” and then they state why you are removable. Often, the alien is removable because she remained in the United States longer than permitted. Other times, the alien entered the U.S. unlawfully (without inspection) or fraudulently (using a fake passport, for example). Some people are removable due to criminal convictions or other immigration violations. Read the NTA and make sure all of the allegations are correct.

    The NTA also contains one or more charges. The charges indicate the section of the law (the Immigration and Nationality Act or INA) that the government can use to deport you. One common charge is under INA § 237(a)(1)(B), where the person is removable for having “remained in the United States for a time longer then permitted.” Other charges could relate to an unlawful or fraudulent entry, or to a criminal conviction.

    Finally, the NTA will tell you where to go to Immigration Court. Usually, these days, the NTA does not tell you when to go to court. Instead, it says, “TBD,” which means “To Be Determined.” If your court date is TBD, you will receive a notice in the mail with the date of your first hearing. It is important to keep your address updated with the Immigration Court. Use form EOIR-33, and don’t forget to send an extra copy to the DHS Office of the Chief Counsel (the prosecutor).

    Also, you can call the Court phone system to check the status of your case and learn whether you have an upcoming hearing. The phone number is 800-898-7180. It is a computer; not a person. Once it answers, follow the instructions and enter your Alien number. After the computer spells your name and you confirm, you can push 1 for your next court date. I recommend you call once a week, just in case you don’t receive the written notice (if you miss your court date, the judge will likely order you deported).

    The wait time for the first court date depends on the court and the judge—it could take a few weeks or a few months (or sometimes longer).

    Once you are scheduled for court, you will be assigned a judge. The 800-number will tell you the name of your judge. You can learn more about your judge at TRAC Immigration (information is not available for newer judges).

    The first hearing is called a Master Calendar Hearing (“MCH”). Many people attend that hearing, and you have to wait your turn. When it is your turn, if you have a lawyer, the Immigration Judge (“IJ”) will take “pleadings.” This is when you (through your attorney) admit or deny the allegations and charges in the NTA. After that, the IJ will usually schedule you for an Individual Hearing (also called a Merits Hearing).

    If you do not have an attorney with you at the MCH, the IJ will usually give you a continuance to find an attorney. If that happens, you will be scheduled for another MCH. In generally, the IJs really want you to find a lawyer, as it makes their job easier and it significantly increases the likelihood that your case will be approved.

    For most referred asylum applicants, the NTA is correct and the person will admit the allegations, concede the charges of removability, and request asylum, Withholding of Removal, and relief under the United Nations Convention Against Torture. However, in some cases, the NTA is not correct. Also, some applicants can seek other relief, such as Cancellation of Removal or adjustment of status based on a familial relationship (or something else). One job of the attorney is to explore what types of relief you might be eligible for.

    Also, at the MCH, the IJ will ask you to designate a country of removal. In other words, the IJ wants to know where to send you if you lose your case. For most asylum applicants, we decline to designate a country of removal. The DHS attorney (the prosecutor) will usually designate the country of citizenship.

    If you admit the allegations, concede the charge(s), and indicate what relief you are seeking, the IJ will usually schedule you for an Individual Hearing, which is your trial. If you decline to accept the first Individual Hearing date the IJ offers you, or if you take a continuance to find a lawyer, it could prevent you from obtaining a work permit (if you don’t already have one—if you already have a work permit, you do not need to worry about this). If you think this could be a problem in your case, ask your lawyer. If you do not have a lawyer, ask the IJ.

    The wait time between the MCH and the Individual Hearing varies by court and by judge. It might be a few days or weeks (for a detained alien), or it could be several years. Supposedly, for asylum cases referred to Court under the new last-in, first-out system, IJs will be scheduling quick Individual Hearing dates. We’ll have to wait and see how that works out.

    The Individual Hearing is your trial. It is where you present evidence, and where you and your witnesses testify. At the end of the Individual Hearing, the IJ will usually make a decision—give you asylum, give you some other type of relief, or order you deported. Sometimes, a case requires more than one Individual Hearing. Other times, the IJ will send the decision by mail.

    If lose your Individual Hearing, you can appeal to the Board of Immigration Appeals (“BIA”). If you win your asylum case, DHS can appeal (thankfully, that is not so common). You do not appear in-person for the appeal. Instead, you (or hopefully, your lawyer) will submit a brief, and the BIA will read it and make a decision in your case. Either the BIA will dismiss the appeal, meaning the IJ’s decision was correct and will remain in force, or it can alter or reverse the IJ’s decision. In the latter instance, the case will normally be returned to the IJ to correct the error, and issue a new decision.

    An appeal with the BIA typically takes about six months or a year, but it depends on the case.

    If you lose at the BIA, you can file a Petition for Review with the appropriate federal appellate court, and if you lose there, you can try to go to the U.S. Supreme Court. Very, very few cases make it that far. Also, if you lose at the BIA, whether or not you go to federal court, you are no longer eligible for a work permit based on a pending asylum case, and you can be deported (typically, ICE will not deport someone with a pending federal case, but they have the legal authority to do so unless the federal court issues an order “staying” removal). For the vast majority of aliens, if you lose at the federal appellate level, that is the end of the line.

    In my experience, it is a bit easier to win an asylum case in Immigration Court as compared to the Asylum Office. But it is much more difficult to win at the BIA, and even more difficult to win at the federal appellate level.

    So this is the basic process that most cases follow if they are denied at the Asylum Office. There are some exceptions and different paths (most notably Motions to Reopen and/or Reconsider), but the majority of applicants will follow this process. If your case is rejected by the Asylum Office, it becomes even more important to have a lawyer assist you. If you can't afford a lawyer, check this posting for some helpful resources. And remember, losing at the Asylum Office is frustrating and upsetting, but it is by no means the end of the road. Keep fighting, and hopefully, you will have a good result in the end.

    Originally posted on the Asylumist: www.Asylumist.com.
  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. Your Affirmative Asylum Case Was Denied. Now What? (Part 1)

    It’s getting more and more difficult to win an asylum case at the Asylum Office. So if your case is not approved, what happens?


    For asylum seekers and pizza lovers, this guy is bad news.


    For affirmative asylum cases, there are two possible negative outcomes at the Asylum Office level: Denial and Referral.

    Denials occur only if you are “in status,” meaning you have some other type of non-immigrant status aside from the pending asylum case. Under the old system (that existed from December 2014 to January 2018), where cases were interviewed in the order received, very few applicants were “in status” by the time of their asylum decision. This is because the cases took years, and very few non-immigrant visas allow an alien to remain lawfully in the U.S. for that long (some exceptions might be the F, J, and H1b visas).

    Now, under the new system of last-in, first-out (which is pretty much the same as the pre-December 2014 system), we can expect many newly-filed cases to receive decisions much more quickly, so more applicants will be “in status” when they receive a decision.

    If the decision is "yes," then you receive asylum with all the accompanying benefits. But if the decision is "no" and you are still “in status,” the Asylum Office will give you a letter, called a Notice of Intent to Deny or NOID. The NOID provides a fairly detailed explanation of why your case is being denied, and it gives you 16 days to file a response. In the response, you can include new evidence and explain why the Asylum Office should grant your case.

    In the last few years, we have rarely seen NOIDs. However, before December 2014, we would see them now and again. Most often, we saw them when a new client came into the office seeking help with a response. The problem for a busy attorney is that the NOIDs give so little time to respond (16 days) and usually a few days had already passed before the person came for help.

    My experience with NOIDs is that the Asylum Office pays attention to the responses. I'd guess that we were successful in getting asylum for about 50% of the people who came to us with such letters. The lesson here is that if you get a NOID, you should do your best to respond. In some cases, it may be impossible to get the Asylum Office to reverse its decision. But as they say, you've got to play to win, so if you get a NOID, make sure to respond--you may turn an "intent to deny" into a grant.

    If you respond to the NOID and the Asylum Office still decides to deny your application (and assuming your status did not expire in the interim), you will receive a final denial. This means that your case is now over, and you can remain in the United States until your period of lawful stay ends. At that point, you are supposed to leave or seek some other status.

    The problem for many asylum seekers, however, is that they do not want to return home (they are asylum seekers, after all). Even though the Asylum Office has denied their case, they want an opportunity to present the case to an Immigration Judge. This makes sense, as many cases denied at the Asylum Office are granted in court. As I'll discuss in Part 2 (spoiler alert!), asylum cases denied by the Asylum Office are referred to Immigration Court if the applicant is out of status. But if you are denied and you are "in status," what can you do?

    If you received a final denial in your asylum case and you want to go to court, you have to re-apply for asylum at the Asylum Office. The procedure for a second application is different than for a first (check the I-589 instructions). Essentially, you submit a new application directly to the local asylum office, rather than file with a USCIS Service Center (initial asylum applications are sent to the Service Centers).

    In theory, for a second application, the Asylum Office will only consider events that occurred after the first application. In other words, they typically will not revisit the first asylum application. Instead, you need to present something new if you want them to grant your case. It's pretty rare that some new evidence arises between a first and second asylum application, and so the second application is likely to be denied. If the second application is denied, and you are now out of status, your case will be referred to an Immigration Judge, who will look at both your asylum cases.

    Given this cumbersome system of having to file a second case, some applicants prefer to file for asylum when their status is expired or close to expiring (but keep in mind the one-year filing deadline). These applicants do not want to leave the U.S., and they prefer to go directly to court if their case is denied. This is certainly a reasonable plan. However, I do think it is important to consider the pros and cons of this approach.

    On the plus side, if your denial arrives after your status has expired, you will go from the Asylum Office directly to court, so your case may move a bit faster. Also, of course, you get the chance to present your claim to an Immigration Judge. On the negative side, in order to make this happen, you have to wait until your status has expired (or is close to expiring) before you file your case. Some people may not like this delay. Also, you will not receive a NOID, and so you will only have a vague idea about the reason for the denial (when a case is referred to court, the Asylum Office does not give a detailed explanation of the reasons). Finally, you will not have an opportunity to rebut the Asylum Office's reasons for denying your case, which means you lose an opportunity to win the case after the NOID is issued. For me, there is no correct answer here. The time frame of when you choose to apply depends on which path you prefer.

    Of course, if you are out of status and receive a denial from the Asylum Office, your case will go to an Immigration Judge. But that is a topic for another day. Stay tuned....

    Originally posted on the Asylumist: www.Asylumist.com.
  4. The One Year Bar and LGBT Asylum Claims

    Richard Kelley is the Legal Program Coordinator for DC Center Global, an organization focused on supporting LGBTQI asylum seekers in Washington, DC. Most recently, Richard was a Senior Associate at the DC Affordable Law Firm, practicing immigration and family law. He is currently an associate at DLA Piper (USA). His full biography can be found here.

    Contact Richard Kelley at richardkelley@thedccenter.org.


    Richard Kelley


    In 1996, the United States Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which fundamentally changed the landscape of asylum law. Most notably, IIRIRA created a new requirement that those entering the country had to apply for asylum within one year of arriving in the United States. This one-year bar has created exceptional challenges for individuals seeking asylum and has had a notable impact on LGBTQI asylum seekers in particular.

    LGBTQI asylum seekers may miss this rigid one year deadline for several reasons: Insecurity about, discomfort with, or lack of openness about their identity; fear of being identified as LGBTQI or being “outed” as LGBTQI in their home country or in the immigrant diaspora within the United States; immense emotional and psychological trauma caused by experiences related to their LGBTQI status; or even lack of awareness that they can pursue asylum based on LGBTQI status. Individuals can often find themselves still exploring whether to apply for asylum based on sexual orientation even after one year has passed.

    Those asylum seekers who are aware of the one-year bar may not know that it is not absolute. There are two ways that an asylum seeker can overcome the one year bar to asylum: (1) the existence of a changed circumstance which materially affects the applicant’s eligibility for asylum, or (2) an extraordinary circumstance related to the delay in filing the application within the first year of entry. If an asylum seeker is able to demonstrate that he or she falls into one of these two exceptions “to the satisfaction of the asylum officer,” the applicant must then show that the application was filed within a “reasonable period of time” after the changed or extraordinary circumstance. See INA § 208(a)(2)(D); 8 C.F.R. § 208.4(a).

    What can be a change in circumstance?


    If asylum seekers can show “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum,” then they will only have to show that they applied within a reasonable period of time after the change in circumstance. The regulations indicate that a change in circumstance may include changes in conditions of the home country; changes in the applicant’s circumstances (including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution); or, if the applicant is a dependent in another person’s pending asylum application, the loss of the spousal or parent-child relationship. See 8 C.F.R. § 208.4(a)(4).

    For LGBTQI asylum seekers, this can take many forms. For example, if an asylum seeker’s home country recently passed legislation that criminalized same-sex relationships or same-sex advocacy, or otherwise targets LGBTQI individuals, this could qualify as a change in circumstance. Additionally, a major change in how the country, including its police force, treats LGBTQI individuals could be a change in conditions at home. Unfortunately, many countries have had discriminatory laws on the books for years, even decades. Some laws banning same-sex relationships are holdovers from colonial rule. Much more likely for asylum seekers is a change in personal circumstances. Potential changes in circumstance could include being “outed” as LGBTQI at home, getting actively involved in LGBTQI advocacy groups, marrying a same-sex partner, or for transgender individuals, going through transition efforts, particularly gender-affirming surgery. The important thing for asylum seekers to understand is that it is critical to explain how this change in circumstance materially affects one’s eligibility for asylum. Or stated differently, why does this new event create a reasonable fear of persecution that did not exist prior to the event occurring?

    What might be an extraordinary circumstance?


    A second option for asylum seekers who are not applying within one year of their entry into the United States is to demonstrate that there is an extraordinary circumstance related to the delay in filing the application. The regulations suggest several potential extraordinary circumstances that could justify a delay in filing, including serious illness or mental or physical disability, legal disability, ineffective assistance of counsel, maintenance of Temporary Protected Status or another lawful status, or a technical error. This list provided in the regulations, like the list of changes in circumstance, is not exhaustive. See 8 CFR §208.4(a)(5).

    LGBTQI asylum seekers can find themselves in situations where they may be able to demonstrate extraordinary circumstances related to their delay in filing. Perhaps the biggest group of asylum seekers who miss the one-year deadline are individuals who come to the United States on student visas or other temporary visas, and during their time in the U.S. either come out publicly or engage in advocacy around LGBTQI issues that subsequently creates a reasonable fear of returning home. In addition, an individual who enters the country as a minor (under the age of 18) may be able to apply because of legal disability.

    Many LGBTQI asylum seekers may also have experienced trauma in their home country due to their identity. Some advocates have argued successfully that this is an extraordinary circumstance that justifies an application outside of the first year. Matter of J-A-, A XXX-XXX-234 (Arlington Immigration Court, April 27, 2012), was an important step forward in this area. The advocates in Matter of J-A- successfully argued that extreme sexual and physical violence against J-A- because of his sexual orientation caused extreme and chronic PTSD, which justified his late application (nearly 10 years after his entry into the United States). This, combined with the fact that he entered the U.S. as a legal minor, led Judge Bryant of the Arlington Immigration Court to conclude that there was an extraordinary circumstance justifying the late filing. But it is important to note that arguments relying on PTSD or other mental health conditions are not always successful. However, rulings like the one in Matter of J-A- give hope that the law might actually catch up with the reality of the psychological impact caused by severe persecution based on LGBTQI identity. Again, the important thing for asylum seekers to focus on here is how the extraordinary circumstance directly caused the delay in filing.

    What is a reasonable period of time?

    If asylum seekers are able to show that there has been a change in circumstance or an extraordinary circumstance, they are permitted to file the asylum application within a reasonable period of time. There is no specified reasonable time in IIRIRA, but the simple answer is that one should file as soon as possible.

    So, while the one year bar can be concerning to asylum seekers and has been particularly harmful to LGBTQI asylum seekers, there is hope. While other options, like Withholding of Removal, may be available to individuals outside the one year bar, it is incumbent upon asylum seekers and advocates to make every effort to help the adjudicator understand the complexities faced by the LGBTQI community and to build effective justifications for filing for asylum outside the one-year period. The exceptions provide some hope to an otherwise devastating change in the immigration law.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: asylum, lgbt Add / Edit Tags
  5. 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
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