Waiting for Godot: The U.S. Asylum Process

"Waiting for Godot . . . is an absurdist play by Samuel Beckett, in which two characters, Vladimir and Estragon, wait endlessly and in vain for the arrival of someone named Godot."

Life imitates art in U.S. asylum law, as this article from Al Jazeera America amply demonstrates.  I do a lot of asylum work in my immigration practice, and in the past couple of years the most salient feature of this area of the law has been government induced delay.

The Al Jazeera America article correctly points out that "asylum claimants" are to be distinguished from "refugees." Asylum claimants are individuals who are either in the United States already, or arrive at the border demonstrating a "credible fear" of persecution based on a protected ground under US asylum law. Refugees, on the other hand, are individuals who have also been persecuted, but who are outside the United States and are eligible to come to the United States after a lengthy screening process.

Here I am focusing on the plight of asylum claimants. There are two kinds of asylum claims that can be made: affirmative and defensive.  Affirmative claims are ones that the alien initiates on his/her own, by making an asylum filing with USCIS. Defensive asylum claims are those asserted by the alien when he/she is a respondent in immigration court, in other words when the Department of Homeland Security (DHS) is seeking to remove the alien to his/her home country because he/she does not have status here.

For the claim to be an "asylum" claim, it must (subject to some strict exceptions) be first asserted within one year of the date of the alien's last arrival in the United States.  Outside of the one year deadline, it is also possible to assert relief from removal in immigration court by claiming treaty rights known as "withholding of removal" and "withholding under the Convention Against Torture," or "CAT."  I will save discussion of the differences between all of these claims for another time, because I want to stay on message about delays.

The Al Jazeera America article is absolutely right about the length of time it takes for an affirmative asylum claim to be heard by USCIS.  An interview process that used to take a few weeks or perhaps months has now stretched into years, literally, due to extraordinary backlogs and lack of personnel. Three years sounds about right as a wait time for an affirmative asylum interview, but I believe it could easily be more.

The situation in immigration court is even worse.  I have some claims that have been arbitrarily put on hold for a "control date" of November 29, 2019!  Some of these cases were previously scheduled for "individual" (trial on the merits) hearings, and were unaccountably canceled by the court system. The reason is simple. The immigration court system lacks sufficient judges and administrative personnel to handle the huge number of cases it has.

When you consider that in many situations it is possible to have an affirmative claim denied by USCIS, and then referred immigration court for further review, you can readily see that some asylum claims can run 6-7-8 or more years for a "final" initial decision.  

After the denial of an asylum claim in immigration court, it is possible to appeal to The Board of Immigration Appeals (BIA).  Such an appeal could easily take two years. Following that, one could then file a petition for review with a Federal Circuit Court of Appeals. You could tack an extra two to three years on that as well.

I have some asylum cases that have been pending for eight years.

The Al Jazeera America article notes:

“As far as federal benefits are concerned, until a person is granted asylum he is not eligible for anything,” Deputy Legal Director of NGO Human Rights First Anwen Hughes wrote in an email to Al Jazeera. “And for the first 150 days the application is pending, he (or she) is not allowed to work, either. After 150 days the applicant can apply for a work permit, which takes 30 days to process.”

There are individual states, including New York and Maine, that offer some types of benefits, Hughes said, but that is not the norm in the United States.

“As a result, surviving especially during those first six months (and for however long it takes a person after that to find a job) is a serious material challenge,” Hughes wrote. “It’s also psychologically draining for applicants who really want to be working, helping their families, and keeping their minds off the problems that drove them here.”

I worked with Anwen Hughes, who is quoted above, a number of years ago on one controversial asylum case involving alleged "material support of terrorism" as a bar to asylum relief--yes, we did eventually get the client a grant of asylum--and can assure my readers that Anwen knows what she's talking about.  I see the problems she refers to on a daily basis.