March 16, 2018
U.S. Citizenship and Immigration Services’ recent change in processing asylum cases is intended to deter fraudulent claims filed to get work permits, but some advocates question whether it’s the right approach.
The agency in January announced that it’s scheduling interviews for more recent asylum claims ahead of longer-pending cases “in an attempt to stem the growth of the agency’s asylum backlog.” As of Jan. 21, that backlog stands at 311,000 pending cases, the agency said.
The size of the backlog suggests that USCIS should devote more resources to asylum cases rather than simply switching the order of processing, Royce Murray, policy director for the American Immigration Council, told Bloomberg Law March 15.
The last-in, first-out approach isn’t a “bad thing” in itself, but “the backlog of 300,000 pending asylum cases now will linger,” she said. “You have some very valid asylum cases” that will continue to wait even longer, preventing applicants from getting final decisions and being able to bring in their family members, she said.
“A timely adjudication of a newly filed asylum application is a good thing and good governance,” Murray said, “but can’t be done at the expense of other cases that are just as meritorious.”
But “there’s a reason that for 20 years this is the way it was done,” said Andrew Arthur, a resident fellow with the Center for Immigration Studies and a former immigration judge. “Getting rid of the bad claims” is the best way to make sure that those with legitimate claims are granted asylum in a timely manner, he told Bloomberg Law March 15.
A representative for USCIS didn’t respond to Bloomberg Law’s request for comment.
“You have to look at the historical context,” Michael Knowles, the president of American Federation of Government Employees Council 119, told Bloomberg Law March 7. When the asylum application process was first set up in the 1990s under what was then the Immigration and Naturalization Service, the agency allowed asylum applicants to apply for work permits immediately, he said.
“The word got out” that all you had to do to get a work permit was apply for asylum, said Knowles, speaking on behalf of the union representing USCIS employees. Then a “whole cottage industry” of “notarios” sprang up whereby the notarios would collect fees from immigrants seeking work permits and then file fake asylum claims on their behalf, he said.
Notarios are individuals who hold themselves out as qualified to provide legal services or advice, but who aren’t in fact qualified and instead defraud their clients.
Some immigrants who paid the notarios didn’t even know that they would be called for an asylum interview, and so would appear for those interviews not knowing why they were called, Knowles said.
And USCIS officers would get a “three-foot stack” of asylum applications to go through in a single day and would grant work permits if there was even a “color of a claim,” he said.
The last-in, first-out process started in 1995 when the INS overhauled the asylum application process. The overhaul also broke the automatic link between an asylum claim and a work permit, setting up what became known as the “asylum clock": a 180-day waiting period after an asylum claim is filed before the applicant can seek a work permit.
New claims thereafter dropped by 75 percent, according to a February 2000 statement from the INS. Approvals also went up, signaling an increase in the proportion of legitimate claims, the INS said.
USCIS—which was formed after the Homeland Security Department was created in 2003—went back to a first-in, first-out process in 2014. But a “huge backlog” developed again shortly thereafter, Knowles said.
“We believe the word may be getting out” that, even though work permits no longer come automatically with an asylum claim, all you have to do “is wait 180 days” to get one, he said.
But “most of the credible fear claims come from Northern Triangle countries"—El Salvador, Honduras, and Nicaragua—and are “largely based on gang claims,” Arthur said. “There really aren’t that many bright-line rules” when it comes to fear of gang violence, he said.
Attorney General Jeff Sessions is likely to issue some bright-line rules in the near future, which would allow asylum officers to make determinations more quickly, Arthur said. And “the more quickly the cases can be adjudicated, the lower the incentive to make a mala fide claim,” he said.
“It’s a little early to tell” whether the new process is actually deterring phony asylum claims filed to get work permits, Knowles said. But the idea is to “get the message out” that the asylum process isn’t just an “easy way” to get a work permit—you will get called for an interview, and you could get put in removal proceedings if your claim is fraudulent, he said.
We’re “hoping to see the volume of applications diminish” so that USCIS officers can get to the backlog, Knowles said. That way you can “reserve your resources for those people who really are refugees who need protection,” he said.
“Depending on how their scheduling goes,” a “reasonably timely interview and decision” is “better for everybody,” Murray said. At the same time, a quick decision that an applicant isn’t entitled to asylum could land that person in removal proceedings more quickly, she said.
Murray acknowledged the concerns about fraudulent asylum claims back in the 1990s because of the ability to obtain a work permit immediately. But “I have no direct knowledge that there are frivolous asylum applications being filed in any kind of a new way so that six months from now they can get a work permit,” she said.
“Is it possible that there are some in the mix? Absolutely,” Murray said. But you still have to “adequately resource the program” so you’re “chipping away at both” the new cases and the backlogged ones, she said.
“The asylum program is being maligned as a magnet for fraud when we forget the important role the asylum system plays in providing protection to people who are fleeing real harm,” Murray said. “This administration seems intent on smearing asylum seekers and the system designed to receive them, when it’s not entirely called for.”