How long will my asylum case take?
No matter what type of immigration matter I am consulted on this question is invariably one of the first ones. It’s not surprising, even outside of the immigration world no one wants to have to deal with government agencies for longer than necessary. When that agency is empowered to decide if you can even stay in this country the desire to “be done” is understandably greater.
Unfortunately, providing an exact answer in asylum cases is difficult and depends on which agency you filed your application with, your filing location, and whether you are filing affirmatively (filing of your own volition) or defensively (as a defense to the government placing you into removal proceedings). Affirmative asylum filings are handled by USCIS which is a component of the Department of Homeland Security (DHS); defensive asylum filings are handled by the Immigration Courts which (under the Executive Office for Immigration Review or EOIR) are part of the U.S. Department of Justice.
Each track has its own advantages and disadvantages but the goal is supposed to be the same: an impartial representative of the government listens to and decides whether or not an asylum applicant’s story of persecution is credible and meets the statutory criteria for an asylum grant. In USCIS that person is an Asylum Officer who receives specialized training in that field. In the EOIR the person who adjudicates an asylum case is an Immigration Judge who usually has years of experience dealing with cases of alleged persecution. But when exactly that adjudication will happen is unpredictable to say the least.
Agency policy and priorities can have a significant effect on processing times;
- if you had asked me in 2017 how long an affirmatively-filed asylum case in New York would take I would have advised you to settle in for a wait of two or more years.
- However in January of 2018 USCIS adopted a “first in, first out” policy resulting in affirmatively-filed cases being scheduled for interviews within 1-2 months of filing if they had been pending for 21 days or less. The agency’s reason for doing so was not any sense of urgency over the massive backlogs (some sources claim that in January 2018 the number of pending asylum cases at USCIS was over 300,000); rather they seemed more concerned that people would be receiving work authorization during the waiting period when their cases might ultimately not be granted relief.
The processing of asylum cases has always been hard to predict. Unlike most other case types the status can’t be checked on the USCIS website; asylum cases seem to exist in somewhat of an administrative vacuum. Even calling the 1800 Customer Service number will not help; you will simply be redirected to the Asylum Office in your jurisdiction. (For cases filed in New York City that office is in Bethpage, Long Island, not 26 Federal Plaza). If you do get through to someone there they will most likely not give you any information other than that the case is being “actively processed” and that you must wait to be called for interview. In previous years the uscis.gov website did contain a filing chart which showed which cases particular Asylum Offices were scheduling for interview for that month; however this feature seems to have disappeared from the site which seems unfair to those applicants whose cases have been pending since before 2018.
As mentioned earlier, asylum cases can also be filed in Immigration Court as a defense to a deportation charge. For example if a foreign national enters the U.S., declares an intention to apply for asylum, and passes a Credible Fear Interview they will eventually be given a hearing date to present their case to an Immigration Judge. This can also happen after USCIS decides not to grant asylum when a case is filed affirmatively and they “refer” the case to Immigration Court. While this does give the applicant a second chance to present their case before a (presumably impartial) judge; the catch is that Immigration Courts have a massive backlog of cases in all categories. In New York the Courts are currently scheduling cases as far out as 2022! While most applicants are eligible for work authorization in the interim it is still a shockingly long time to wait for a hearing on an asylum case.
DOJ published Guidance on November 19th, 2018 which states that EOIR will now be required to issue a final decision on asylum cases within 180 days of receipt of a “complete filing”.
While at first glance this may seem like a win for asylum seekers, it is concerning that the government is more concerned with quotas and targets than providing due process to asylum applicants. Even under the pre 2018 regime when cases took three years to be interviewed there were many instances when asylum was not granted in very deserving cases; it is doubtful that the quality of adjudications will improve under this increased pressure to get these cases “out the door”. The Guidance does not provide specifics as to how EOIR will implement this policy or if there will be any mechanism to expedite the clearing of the current backlog.
However it is clear that (as with the USCIS interview policy) one of the goals of this new scheme is to prevent people getting employment authorization if their cases will eventually be rejected. Since EAD cards cannot be issued less than 150 days after filing the asylum application, if the government denies your case before that 150 day mark you simply will have no basis to apply for an EAD since eligibility is based on having a pending case.
With the new fast track interview scheduling process at USCIS we can only expect that more and more cases will experience undue delays as a result of this policy. If your case has been pending for more than two years, it might be a good idea for you to start writing inquiry letters to USCIS and even have your Congressional Representative write one for you. This will lay the foundation for a Federal Mandamus suit against the government for undue delay. We feel this is a ground for a Mandamus action and that this delay is caused by USCIS’s new policy and not through any fault of the applicants. For defensive asylum cases, without any new Immigration Judges or support staff being allocated by DOJ to the Immigration Courts, and with Immigration Judges being held to a rigid case adjudication quota system it is hard to see how EOIR can effectively adjudicate cases in a fair and balanced manner within 180 days. It is also unfair to expect people to be able to produce evidence of the persecution in their country in such a short time.
It seems that the current administration’s aim is to discourage asylum applications. However, I always remind people that the administration has not changed our immigration laws nor do they have the Power to do so; that Power belongs to Congress and only Congress. If you believe you have a compelling account of persecution in your country and that you may qualify for asylum you should not be put off by agency-created processing times. I urge you to call our dedicated, experienced staff for a consultation today. We will work tirelessly with you to present your case to the authorities so that you have the best chance of success, regardless of how long the case may take.
By – Alexandre Law Firm