We all deal with backlogs. It may be dealing with an abstract list of lifetime goals, our bucket list, like visiting all 50 states, learning French, or, the more challenging, like getting through Ken Burns’ “Vietnam.” Then there are more mundane ambitions, like converting your CD collection to MP3’s, or reading that ever-growing pile of New Yorkers. The government has its backlog too. The one I have the most experience with is the backlog in immigration cases.
There are three major areas of immigration case backlogs:
1. Cases of people applying through benefits, like for status or permission to work or travel from USCIS;
2. Cases of people applying for asylum;
3. Immigration court cases.
We develop strategies to tackle the backlogs. One strategy is a triage plan – I’ll skip the Talk of the Town, the fiction, the music reviews, and of course, the never (OK, the hardly-ever) funny Shouts and Murmurs. Another strategy is to ignore the existence of the backlog – take all the New Yorkers before 2018 and throw them in the trash and vow to be a more diligent reader in the future. A third is to redefine a backlog as not a backlog, considering it just a fact of life. A pregnant woman does not have a 9 month backlog in baby creation – it simply takes 9 months to make a baby. The comfort of knowing that everyone has a stack of unread New Yorkers means it is not a backlog, just a natural fact.
Immigration officials deal with these backgrounds in some or all of these ways. Let’s take first the USCIS backlog. From time immemorial, USCIS and its predecessor organization, the INS, published processing times. The purpose was so its customers would know how long to wait before worrying that a case was lost and some sort of intercession was necessary. Then a series of methods to intercede were created like a number to call, an online system to engage, speaking with an officer in person, or contacting other officials, like the DHS Ombudsman, or a congressman or senator.
While everything was certainly not perfect in immigration in the President Obama years (there is eight years of my blogs to prove that), one thing you can say is that USCIS processing times improved. And one thing you can say of the President Trump year is that processing times have gotten much longer. USCIS, unable to throw cases away, has employed the tactic of redefining a backlog as not a backlog. USCIS has instituted with some fanfare, a new reporting system of publishing processing times. As USCIS explains:
The updated page displays processing times in a range for each form based on the date USCIS receives it. The low end of the range for pilot forms shows the time it takes to complete 50 percent of cases, and the high end shows the time it takes to complete 93 percent of cases. The high end for the non-pilot forms [ everthing except forms N-400, Application for Naturalization;
Form I-90, Application to Replace Permanent Resident Card; Form I-485, Application to Register Permanent Residence or Adjust Status; and Form I-751, Petition to Remove Conditions on Residence] will be adjusted by 30 percent above current cycle times to reflect the time it takes to complete a majority of the cases.
A case thus should not be considered “outside normal processing times” until 92 percent of people applying for the benefits when you (or your client) did got a decision. In most cases, other than the four forms listed, to conform to the new reporting method, 30 percent extra time will be added to the old way of calculation to create the new 93- percent-completed upper limit before you can consider a case outside normal processing times. So, USCIS has just given itself at least 30 percent more time before a person can complain that a case is delayed. In addition, we have no idea what is special about the 93 percent completion endpoint. However, if, suppose, 10 percent of cases have intractable problems that lead to delays in adjudication, USCIS could theoretically never have a case that is outside processing times because there is no point where more than 90 percent of cases are adjudicated. So, USCIS magically has delayed and theoretically can eliminate cases where customers can complain about backlogs.
Of course backlogs still exist. Take for example, the Form I-751. This form is filed by people who were granted permanent residence before having been married for two years. It is filed immediately before the permanent resident has had this status for two years. USCIS reports that the processing time for this benefit is 17.5 to 19 months at its California processing office. The purpose of the process, in the interest of reducing marriage fraud, is to make sure newly-wed couples are still together after two years of permanent residence. By taking a year and a half to decide these cases, USCIS has ipso facto extended the requirement of being together for two years after becoming a permanent resident to being together 3 ½ years. While permanent residents who separate or divorce can still keep their green cards, it requires a lot more documentation and an interview and dealing with a skeptical agency. While the delay may help expose more visa fraud in exposing people who were willing to persevere through a two-year sham marriage but not three or four years, it creates a lot more collateral damage in people who uprooted themselves from their native countries and established themselves in the United States based on a marriage that then did not work out and now, in addition to the tragedy of a failed marriage, face a skeptical agency that presumes the whole thing was a sham.
The asylum office has taken a different strategy. It is essentially ignoring the old cases. As asylum cases have backlogged for five years or more at the Los Angeles asylum office, USCIS announced that it has changed from a first-in-first out system to a last-in-first-out system. New cases, starting January 29, 2018, will be decided and old cases will be dealt with after the first ones. While the asylum offices intend to get to the older cases, they acknowledge that they cannot keep up with the current inflow of cases. They are falling behind in interviewing the newer cases, effectively creating a second backlog – a backlog of new cases that need to be interviewed before touching the old cases. USCIS has not exactly thrown out the pre-January 29, 2018, cases, but has moved that stack of cases to a pile that will not be touched, while it deals with the current stack being adjudicated and the second stack of new cases awaiting to be adjudicated. The goal of the new policy is to create a disincentive to applying for asylum based on the assumption that people are applying for asylum because of the huge delays in processing times, knowing they could live in the United States for years while their cases were pending. While this may be true for some applicants, many more are desirous of an adjudication as they came to the United States to be safe from persecution and instead face years and years of uncertainty and in many cases, without their spouses and children, whom they hope to reunite with after they win their cases and who otherwise cannot come to the United States.
Immigration court cases
That the immigration courts are backlogged is reported on in the media nearly every day. The government has dealt with the stack in lots of ways. Under President Obama, the government used an “ignore the backlog” approach. Accepting that the backlog was nearly unreduceable, immigration enforcement officials and the immigration courts used prosecutorial discretion to administratively close cases. This was not exactly like throwing old cases in the trash, but was more like moving the piles of New Yorkers to the garage, knowing in your heart of hearts that you’ll never get to those Hendrik Hertzberg articles.
The current Attorney General, who is in charge of the immigration courts, has a different idea. Work through the backlog by trying to hire more judges and to work faster – get through 700 cases a year or else. With a work year of 2000 hours (50 weeks x 40 hours), 700 cases means completing three cases a day. As ICE is catching anyone with a pulse and no status and other sources of immigration court case creation are working full-throttle, working faster probably will not solve the problem. In the meantime, to work faster may mean more triage – judge’s going by their gut as to whether a certain crime is a deportable offense or limiting the time to present discretionary equities and allowing the higher courts to do the legal analysis and determine if quicker is fair enough. President Obama’s method of triage, administratively closing non-priority cases, is going by the wayside. And as long as people can appeal roughshod justice, the backlogs in the immigration courts under these new policies, will mean taking the immigration court backlog and shifting it to the appeals board and the courts of appeal. And while solving little, the humanitarian toll is huge.
Dealing with backlogs in immigration cases, like dealing with that stack of New Yorkers, requires creativity, resources, and some new rules (like making the New Yorker a monthly magazine!). Ignoring them, redefining them away, and exhorting hard-working people to work harder will just make everything worse. Having been an active observer of the immigration process over the last year and the twenty before it, one thing that is quite clear is that in the immigration context (like in most others), in the last year our government is making America worse. Posted April 15, 2018.