Last month, the Asylum Division released the most recent data about the affirmative asylum backlog. The short story is that the nationwide backlog continues to grow, albeit quite slowly. Also, the growth is not evenly distributed among the various Asylum Offices–some are seeing their backlogs get larger; others are seeing their backlogs shrink. Here, we’ll take a closer look at what is happening in terms of the backlog, and also review some of the (surprising) answers that the Asylum Division gave to questions posed at the quarterly stakeholders meeting.
First, some numbers. In February 2019, the nationwide backlog was 326,767 cases; in March, it was 327,984, meaning that the backlog grew at a rate of less than 0.4%, which is pretty insignificant. However, when we break down the growth rate by Asylum Office, we see a different picture. Some offices had growing backlogs: Arlington (+1.5%), Boston (+0.2%), Houston (+1.8%), Miami (+0.8%), New York (+0.2%), New Orleans (+4.1%), and San Francisco (+0.5%). Other offices had shrinking backlogs: Chicago (-0.2%), Los Angeles (-1.3%), and Newark (-1.9%).
What these numbers mean for asylum seekers is not entirely clear. For people in the backlog, only three offices seem to be making any headway at all, and so if your case is stuck in Chicago, LA or Newark, there is at least some hope that you will eventually receive an interview. Backlogged applicants in the other offices are unlikely to receive an interview any time soon, unless they can expedite their case.
For new applicants, my suspicion is that offices with shrinking backlogs are more likely to interview newly-filed cases. For example, most of our cases are filed in three offices: Arlington, Chicago, and Newark. Arlington has a growing backlog, and our experience there is that a minority of our newly filed (LIFO) cases receive interviews. In Chicago and Newark, which both have shrinking backlogs, our newly-filed cases all seem to receive interviews.
So if you plan to file for asylum, and want to maximize the chance for a fast interview, are you better off filing in Chicago, LA or Newark? Maybe. But one issue is that USCIS moves resources from office to office, and so a fast office today might be a slow office tomorrow. An example of this is Los Angeles. For years, LA was the office with the largest asylum backlog. Then, at some point, headquarters sent some help (or made some sort of change), and now LA is one of the “fast” offices. At the Asylum Division Quarterly Stakeholder meeting last month, we asked about the inequitable delays, and the leadership told us that in summer, they re-evaluate how resources are distributed. So maybe there will be changes in the coming months, and this could affect how the local offices process their cases.
What about grant rates at the different offices? There are different ways to calculate grant rates, and so to some degree, whether a particular asylum office is “easy” depends on how you crunch the numbers. I prefer to factor out “no shows” for obvious reasons. I also factor out one-year bar cases, which is arguably a bad idea, and cases referred without an interview. In other words, I want to know the grant rate for cases filed on time, where the person shows up for his interview. Using that method, the overall grant rate for the U.S. for March 2019 (the most recent month available) is 47.7% (had I not factored out the cases I don’t like, the grant rate would be much lower: 27.5%). Looking at grant rates for each office, we have: Arlington (44.0%), Boston (37.8%), Chicago (55.6%), Houston (44.7%), Los Angeles (68.3%), Miami (25.5%), Newark (43.1%), New York (23.7%), New Orleans (68.3%), and San Francisco (69.3%).
While I think there is some value to these numbers, it is important to remember that different offices serve different populations, and some populations are more likely to be denied than others. For example, though many Central American asylum seekers face severe danger, they often have a hard time winning asylum because the harm they typically face does not easily fit within a protected category under the asylum statute. For this reason, an office with many Central American cases might have a lower grant rate than an office that serves a different population. Put another way, a strong case is likely to win regardless of the office where you file. Even so, when you have such a wide range of approval rates, it’s hard to argue that a person is not better off filing in LA, San Francisco or New Orleans, as opposed to Miami or New York.
So that’s more-or-less where we are in terms of the backlog and asylum grant rates, but there is other news from the Asylum Division as well, including about the LIFO system itself. Here, the Asylum Division is claiming a win: “Since the adoption of the LIFO scheduling policy, the Asylum Division has seen an approximately 30% decrease in receipts [i.e., newly-filed asylum cases].” The theory being that frivolous asylum seekers, who just want a work permit, are deterred from filing by the LIFO system. I don’t doubt that the number of asylum seekers has dropped since January 2018, when LIFO went into effect, but I am not convinced that LIFO gets credit (or blame) for this. There could be many reasons for the down turn, including normal fluctuations in applications, the hostile environment for asylum seekers, greater difficulty in obtaining a U.S. visa, etc. However, given that the Asylum Division views LIFO as contributing to a reduction in applications, I would not expect a change in that policy any time soon.
Also at the Stakeholders meeting, the Asylum Division informed us that, between October 2018 and March 2019, “approximately 70 percent of asylum office final decisions were made within two weeks of the completed interview.” I’m a bit more skeptical about this claim. At least I do not see it for my clients, who usually wait months (at least) for a decision. Admittedly, most of my clients are not typical asylum seekers, who come from Latin America and China, and that may skew my perspective (many of my clients come from Muslim countries, which seem to require longer background checks).
One final point: There have been rumors that the Asylum Division is terminating asylum grants for people from Ethiopia due to improved country conditions. In response to a question on this point, the Asylum Division states–
The Asylum Division initiates termination review when we receive person specific evidence that an individual asylee may be subject to termination of asylum status for any of the applicable grounds under 8 C.F.R. § 208.24. We have not issued any policy memos/directives/other information regarding the termination of asylum status based on the individual no longer having a well-founded fear of persecution due to changed country conditions in the individual’s country of nationality or last habitual residence.
In other words, there is no blanket policy to terminate asylum for Ethiopians. Whether this means that Ethiopian asylees are safe, I am not sure, but at least there is no general policy to terminate asylum in such cases.
So that’s the latest from the Asylum Division. If the recent agreement with Mexico blocks applicants from coming here, we might see resources moving from the border to the backlog, which could cause things to speed up. Only time will tell, and if there is news at the next Quarterly Meeting, I will try to post it here.