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Jason Dzubow on Political Asylum

Asylum Case Delayed Forever? Here Are Some Possible Reasons

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These days, all asylum applicants face long waits prior to their interviews. After the interview, some applicants receive a decision in two weeks; others wait months; still others—thankfully, a minority—wait for years without a decision.
A helpful diagram of the U.S. asylum system.


Why does it sometimes take so long to get a decision? Our dogged reporters at the Asylumist have come into possession of an internal Asylum Office document that sheds light on this question (ok, in truth, the document is publicly available, but it’s not so easy to find). The document is the Quality Assurance Referral Sheet, which lists the categories of cases that must be submitted to headquarters (“HQ”) for further review.


Cases submitted to HQ often face substantial delays. So if your case falls into one of the below categories, you can expect a longer wait for your decision. How long? I have no idea. Some of our cases that go to HQ receive decisions relatively quickly. Others languish for months; sometimes years. There seems to be no way to predict how long such cases might take.


Without further ado, here are the asylum-seeker categories that hopefully you don’t fall into:


Diplomats and Other High Level Officials:
Any decision—grant, referral to court or a notice of intent to deny—in the case of a sitting diplomat to the U.S. or United Nations, other high-level government or military officials, high ranking diplomats to other countries, and family members of such people must have their cases reviewed by headquarters. The same is true for any asylum applicant who fraudulently obtained a diplomatic visa.


National Security/Terrorism-Related Inadmissibility Grounds (“TRIG”):
Any decision in a case that would be granted but for a TRIG bar, regardless of whether an exemption to the bar is available, must go to HQ. The TRIG bar is quite broad and many people are potentially affected. This includes people who worked for or supported terrorist organizations (or more accurately, organizations that the U.S. government views as terrorists), and even includes people who “supported” terrorists under duress. An example might be someone who paid money as ransom or who was forced on pain of death to provide services to terrorists. TRIG is particularly tricky because some cases (recent numbers are not available, but last year's numbers are here) are placed on indefinite hold, meaning the applicant will never receive a decision, at least not until the government gets around to enacting new regulations on the subject. If you think your case might be subject to a TRIG hold, you can email USCIS (the email address is here, at the bottom of the page). In my limited experience (two cases), USCIS has been responsive and has informed me whether my cases were being held due to terrorism-related grounds (they were not).


Other National Security:
In order to grant a case involving national security concerns, where the concern was not resolved through vetting, the case must go to HQ. Aside from terrorism, national security concerns can include a wide range of activities, including suspected gang membership or involvement in other criminal activities.


Persecutor-related issues:
Asylum grants are referred to HQ where the evidence indicates that the applicant may have ordered, incited, assisted or otherwise participated in acts of persecution or human rights violations, and the individual has demonstrated that he should not be barred as a persecutor. Also, before a credible applicant is referred to Immigration Court or issued a Notice of Intent to Deny letter based on the persecutor bar, the case must be reviewed by HQ. You might fall into this category if you served in the police or military of your country, if you were a prison guard or you interrogated prisoners, and if your government has a record of abusing human rights.


Publicized or Likely to be Publicized:
High-profile cases that have had or are likely to have national exposure, not just local interest, are subject to HQ review. If your case is getting media attention, or if it could affect relations with your home country, the case will likely be sent to HQ before any decision (good or bad) is issued.


Firm Resettlement:
If a person is “firmly resettled” in a third country—meaning, she has the ability to live permanent in a country that is not the U.S. and is not her home country—she is ineligible for asylum. Where the asylum office would have granted the case but for firm resettlement, the case is sent to HQ for review.


Juvenile:
Where the asylum applicant is less than 18 years old at the time of filing, the case will be referred to headquarter if the Asylum Office intends to deny.


EOIR- Prior Denials:
Where an applicant was previously denied asylum by the Executive Office for Immigration Review (the Immigration Judge and/or the Board of Immigration Appeals), the case must be reviewed by HQ before it can be granted.


Discretionary Denials/Referrals:
If the Asylum Office intends to deny a case or refer it to the Immigration Court based solely on “discretion,” the case must be reviewed by HQ. This means that the asylum applicant met the definition of a refugee and is otherwise eligible for asylum, but is being denied or referred due to reasons that are not legal bars to asylum. A discretionary denial might be for a crime that does not bar asylum, like DUI or failure to pay child support, or for some other lack of good moral character.


National of Contiguous Territory/Visa Waiver Country/Safe Third Country: Where the Asylum Office intends to grant the case of an applicant from a contiguous territory (Canada or Mexico) and the case involves a novel legal issues or criminal activity by the applicant in the U.S. or abroad, the case must be referred to HQ. Also, cases of applicants from countries in the Visa Waiver Program must be referred to HQ before they are granted. In addition, grants of applicants who are nationals of countries with which the U.S. has a Safe Third Country agreement must be referred to HQ (the only country with which we currently have such an agreement is Canada).


Safe-Third Country Agreement:
All cases in which evidence indicates the STC agreement may apply, irrespective of whether the applicant is eligible for an exception, must be referred to HQ. This means that anyone (regardless of country of origin) who was first in Canada (the only country with which we have a STC agreement) and then came to the United States for asylum, must have her case reviewed by HQ.


Asylum Office Request for HQ Quality Assurance Review:
Any case for which the Asylum Office Director requests review from headquarters will be reviewed.


As you can see, there are many reasons why a person’s case might be referred to headquarters for more review (and more delay). It would be helpful if the Asylum Office could publish some data about HQ review—perhaps how long each category of review takes and how many cases are currently under review. I understand why HQ cannot easily predict how long the review will take for an individual case, but if more information were made public, it would help ease the wait for asylum applicants.

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

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