Asylum delays lead to unintended but not surprising consequences.

Sunday, September 27th, 2015
By: Jonathan MontagJ.D.

An opportunity appears and you can bet someone is around to take advantage of it. USCIS acknowledged that the asylum program is hugely backlogged. It posted the filing dates of applications that are currently being processed at the Asylum Offices around the country.  The Los Angeles Asylum Office is now processing asylum cases filed in August 2011. What this means is that a person who filed an asylum interview more than four years ago will just now get his interview.

Attorneys who practiced a decade or more ago may have encountered cases involving the law firm of Guevara and Quintanilla. This was a Los Angeles law office that promised work permits and social security numbers to undocumented people for a fee. What the firm would do is file fraudulent asylum applications for people. Under the law at the time, after filing, one was allowed to get a work permit and with the work permit, a social security number. The rationale was noble; people fleeing oppression and seeking the protection of the United States need to be able to support themselves while seeking asylum, a multi-year process back then. A work permit allowed the applicant to seek work legally. Guervera and Quintanilla did not forward correspondence from the government to these people. They would receive work permits and even renewals, but then would not receive correspondence regarding asylum interviews. When they failed to appear at their interviews, their cases were denied and referred to the Immigration Court. The court hearing notices were also not sent to these people and they ended up being ordered deported in absentia.

Perceiving that people were playing the system by making bogus asylum claims to get work permits and knowing that backlogs meant years of work permit issuance, Congress tightened up the system. Asylum interviews were to be handled in less than 180 days and an asylum seeker could not receive a work permit until is case was pending 180 days. Delays in a case caused by the applicant did not count toward the 180 days. Cases sent to the immigration court were also fast-tracked with a goal of completion before the 180 days. The bogus asylum claim to get a work permit game ended.

I got a call from someone last week asking about a friend (it’s always a friend) who is undocumented and has no means of legalizing his status – no relatives that could qualify him for an immigration benefit. A lawyer told him that for $5,000 he could get the person a work permit and social security number. He asked what I thought about this.

What we have is the resurrection of the Guevara and Quintanilla strategy. I told the caller that what the lawyer intends to do is file an asylum application for the person, wait a few months, and then file for a work permit. (Both applications, by the way, are free – an asylum application and an initial work permit.)

Is it wrong and illegal to apply for asylum without a valid claim? Yes. Is it wrong to file an asylum application when there is an arguable claim, but not a slam-dunk one? No. In fact, there was a time when immigration judges would encourage attorneys to file dubious asylum claims just to make sure a case was not litigated in piecemeal fashion.Will the person receive work permits for what may be four or five years? Yes. Will the person, if the case is denied by the Asylum Office, be able to renew the case in immigration court and be able to renew the work permit for two or more years because the immigration courts are backlogged? Yes. Will the person , if the case is denied in immigration court, then be able to renew the work permit for two or more years by appealing to the Board of Immigration Appeals because the BIA is backlogged? Yes. And then, if he loses at the BIA, could the applicant get a few years of work permit extensions by appealing to the Courts of Appeals because of backlogs there? Yes. One can argue that filing a dubious asylum application is unethical and possibly illegal. What one cannot argue is that it can lead to nearly a decade of employment authorization and safety from being deported.

The immigration system is under terrific pressure leading to unconscionable delays in case processing. These delays have unintended consequences which end up giving wrong incentives to people and causing more pressures on the system. Only if Congress is willing to fund the immigration system instead of complaining about it will backlogs drop and incentives to game the system become fewer and weaker. And those of us trying to earn an honest buck won’t feel like suckers. Posted September 27, 2015.


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