Lawsuit reapportions slices of the fixed-size Asylum Officer pie.

Sunday, August 30th, 2015
By: Jonathan MontagJ.D.

The American Civil Liberties Union and U.S. Citizenship and Immigration Services announced  that a settlement has been reached in a lawsuit, Alfaro Garcia v. Johnson, filed by the ACLU seeking to compel USCIS to conduct reasonable fear interviews for aliens detained by Immigration and Customs Enforcement who are prior deportees who are found in the United States and make Asylum claims. Under the settlement, USCIS will conduct these interviews within ten days of the alien’s being referred to USCIS for such an interview.

Let’s be clear who this lawsuit affects. Many people seek Asylum and related relief each year:

1. People who come to U.S. borders or airports (arriving aliens) and express fear of return to their countries;
2. People caught sneaking into the U.S. and upon apprehension express a fear of return to their countries;
3. People inside the United States who file Asylum applications with USCIS (affirmative Asylum claims);
4. People inside the United States who are apprehended by ICE and make Asylum claims as a defense to being removed.

Among those in all four of these groups are people who have already been deported – or people who, because of the seriousness of their crimes, are issued removal orders while still in prison for their crimes under a streamlined process. A person who has been deported and found again in the United States is subject to reinstatement of  his removal order unless he was able to obtain waivers to bars to reentry to deported aliens or aliens without a proper visa to enter the United States. A prior-deportee is not eligible for Asylum, but is eligible for Withholding of Removal or Convention Against Torture relief if he can show that it is more likely than not he will be persecuted on account of established grounds of persecution or tortured by the government or with the government’s acquiescence if he is returned to his  country.

People who make these claims are often people who upon return to their country after deportation had bad things happen to them and flee again to the United States. Others are people whose legal bases for claims for Withholding or CAT became established after their first deportations. For example, until recently, most domestic violence against women claims failed in the immigration system, but now this form of persecution is becoming more and more established as a basis for Asylum or Withholding of Removal. Similarly, gang-related violence, endemic in Mexico and Central America, is slowly emerging as a potential successful basis for am Asylum or Withholding claim. Others, desperate to avoid removal, raise claims perhaps previously denied or abandoned  in a Hail Mary attempt to stay in the United States and ward off reinstatement.

Reasonable fear interviews are conducted by Asylum Officers who work for USCIS. This is not the only job of Asylum Officers. They also conduct “credible fear” interviews for arriving aliens seeking Asylum. Also, people who make affirmative Asylum claims are interviewed by Asylum Officers at Asylum Offices around the United States. There are two such offices in California, in San Francisco and Anaheim. There are other minor things Asylum Officers do, like re-issue Asylum grants in cases where a grant for some reason or another has lost its legal effectiveness (a discussion for another day).

Asylum Officers are few in number relative to the demands on the Asylum system. The flood of Asylum seekers from Cuba, Mexico, and Latin America have been in the news. Add to that streams from Syria, Iraq, Libya, Egypt, and African countries such as Ethiopia, Nigeria, and Somalia, all places where normal life is disappearing or disappeared, and one can see how the Asylum-adjudication system is severely overtaxed.

The lawsuit seeking expedition in conducting reasonable fear interviews is based on the fact that a regulation, 8 C.F.R. § 208.31(b), requires that a reasonable fear interview be conducted within ten days of referral to an Asylum Officer. No such timetable exists for the other types of interviews Asylum Officers conduct – reasonable fear interviews for arriving aliens and Asylum adjudications in affirmative Asylum cases. Because of the plain language of the regulation, USCIS acquiesced to working towards the goal of adjudicating reasonable fear interviews within ten days. This was not inevitable. The regulation ordering that an interview be conducted in ten days also contains the phrase, “In the absence of exceptional circumstances.” USCIS could have argued that the sea of humanity flowing to the United States making Asylum, Withholding, and CAT claims and the government’s inability to fund, hire, retain an adequate corps of Asylum Officers is an exceptional circumstance which should excuse delays. For whatever reason, USCIS decided not to fight.

By not fighting, the big winners are prior deportees making Withholding and CAT claims. And the ACLU, I guess. The big losers are anyone else who needs the services of the Asylum Office. For example, the settlement does not apply to arriving aliens making Asylum claims who need credible fear interviews. Curiously, though required by regulation to conduct a credible fear interview before releasing arriving aliens, ICE does send aliens to immigration court to seek Asylum there without such interviews. Perhaps USCIS will just release more arriving aliens without conducting credible fear interviews and allow these aliens to file for Asylum affirmatively or in immigration court – if a case is filed there. Otherwise, these aliens, who have never before had a bite at the Asylum apple and have less exposure to detention, legal processes, and understanding of what is going on (because, in part, of knowing less English), now go to the back of the detainee interview line. Are arriving alien initial Asylum seekers really less deserving of expedited initial interviews than prior deportees who already had an opportunity to seek Asylum?

Then there are the affirmative Asylum applicants. Many have been waiting years, perhaps four or more, for Asylum interviews. In response to a U.S. Congressman who contacted USCIS on behalf of a constituent who has been waiting three years for an Asylum interview, The USCIS Anaheim Asylum Office wrote:

In your inquiry, you expressed concern about the delay in the scheduling of your constituent’s asylum interview. I apologize for the fact that we have been unable to schedule your constituent for an interview in a prompt fashion. You may not be aware of the fact that the USCIS Asylum Division has been faced with a significant increase in individuals seeking asylum at our borders. We prioritize these individuals for screening interviews because they remain in detention until we complete their processing. In addition, we have been faced with an increasing number of individuals, like your constituent, who have applied for asylum. While we are presently trying to hire additional staff to deal with this increased workload, we have a growing backlog of asylum applicants who are waiting for interviews. In our office, we presently have approximately 14,000 other asylum applicants who are waiting for interviews, many for several months longer than your constituent has unfortunately had to wait.

Thanks to the prioritization of prior deportees, these waits are bound to increase. You may say that the wait for these people is less egregious because they are at least free in the United States while waiting for their interviews. Yes, but, remember that many asylees are heads of households. A wife and children are left behind in danger because of their inability to get to the United States to make an Asylum claim. With the goal of winning Asylum and then processing paperwork for ones family afterwards, the head of the family may come to the U.S. alone. Instead of a quick process and an interview and decision within a few weeks so the process of bringing the family can begin, the man languishes alone in the U.S. for three or four or more years while a mother is left alone with children in danger. Even without a family back home to worry about, can you imagine the stress on someone fearing returning to his country not being able to get a protected status and some finality after four years of waiting.  Do prior deportees with Withholding claims merit the allocation of interviewer resources over these affirmative Asylum seekers and their families?

As for reissuances, re-issuances occur most often when an Asylee is applying to become a permanent resident. Re-issuances are not happening PERIOD. This means members of a certain group who have been waiting years and years to become permanent residents may never become permanent residents because USCIS will not re-issue Asylum grants.

Had the government been compelled to expand the Asylum Officer workforce and increase productivity without impacting other USCIS functions, then there would be great reasons to celebrate (except for those whose presence in the United States has no basis in the Asylum law and are just staying and staying because of the extreme delays in the handling of cases). As it is, all we have is the government re-determining the size of each slice of the Asylum-Officer pie going to different Asylum-Office functions. And I am not sure that after the settlement in Alfaro Garcia that the biggest slice is going to the most deserving function. Posted August 30, 2015.


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