In an effort discourage asylum claims from DACA and TPS holders, U.S. Citizenship and Immigration Services announced on Jan. 31, 2018, that it was changing the way the agency schedules asylum interviews. Instead of adjudicating them on a “first-in, first-out” basis, it would revert to a prior “last-in, first-out” basis, which is the way they scheduled cases from 1995 to 2014.

Background

Asylum offices have a statutory duty to schedule an asylum interview within 45 days of the initial filing; the entire case must be completed within 180 days (the time it takes for a person with a pending asylum application to procure an employment authorization card). INA § 208(d)(5)(A)(ii) & (iii). For many years, asylum cases were adjudicated within this time frame, absent exceptional circumstances. In 2014, however, in response to the surge of Central American asylum seekers, the affirmative asylum processing slowed down considerably. Asylum officers were assigned to interview credible fear and reasonable fear interviews, and as a result a significant backlog developed. In December 2014, the scheduling system changed to deal with the backlog and the asylum office started interviewing cases on a “first-in, first-out” basis. Thus, cases were heard in the order in which they were filed. The asylum division placed an asylum scheduling bulletin on its website indicating how long each asylum office was taking to schedule interviews based on the filing date.

Current Scheduling System

As of Jan. 29, 2018 the asylum office started interviewing cases based on the following priority system.

• First priority: Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS
• Second priority: Applications that have been pending 21 days or less
• Third priority: All other pending affirmative asylum applications (backlog cases) will be scheduled for interviews starting with newer filings and working back towards older filings.

Consequently, the prior scheduling bulletin no longer exists on the USCIS website. USCIS’s decision to use this priority system is to deter “frivolous” asylum applications in order to obtain employment authorization. Thus, applicants who file applications that could ultimately be referred to immigration court will not have the chance to accrue the 180 days necessary to obtain an employment authorization card. USCIS still retains the ability to alter this schedule if it has to send asylum officers to the border for credible and reasonable fear interviews. Emergency cases can be scheduled outside this priority system on a case-by-case basis depending on the local asylum office practice.

In addition to this priority system, USCIS stated at the AILA/Asylum Division Liaison meeting that it will begin a pilot program for cases where the applicant arrived in the United States over ten years before the filing and where there is no argument or evidence to get over the one-year filing deadline. On the week of Jan. 29, 2018, the agency sent out a group of Notices of Untimely Filing to some applicants in the backlog and notified them that their cases appeared to be subject to the one-year filing deadline. USCIS stated that this would be a voluntary process and there is no obligation to accept that their case be referred to the immigration court without an interview and that a decision be issued based solely on the record.

Practice Tips

• If you have a case in the backlog, remember that you can always ask the asylum office to expedite the interview if there is an emergency, such as family in danger in the home country or a serious health reason. Make sure to fully document the reasons for an expedited interview.
• Attend or get the notes from local asylum office/AILA liaison meetings for updates on scheduling. 
• Be ready to present recently-filed asylum cases as soon as possible. While many people have relied on the backlog system in order to prepare cases, believing that the case would not be interviewed for months or years, cases may now be heard within weeks. 
• Be careful when rescheduling cases. Depending on the local asylum office, the new interview date could be within a few weeks or up to a few months. Bear in mind the employment authorization clock will be stopped until the asylum applicant attends the interview. Thus, the clock will run once the asylum applicant attends the interview.
• Before requesting that a backlog case be processed without an interview and referred for cancellation of removal before the IJ, make sure to screen clients for potential asylum claims, even if the asylum applicant has been in the United States over 10 years. The Asylum Office has granted asylum in such cases, as some of these cases had valid claims based on domestic violence or sexual minority status.
• Remember that unaccompanied minors are no longer considered a scheduling priority.  Be prepared to make motions before the immigration court to continue the case until the case has been adjudicated by the Asylum Office. Also, it is expected that the Asylum Office will soon make new determinations on “unaccompanied minor” status at the asylum interview and find that they don’t have jurisdiction to interview the applicant. Thus, minors whose cases have been pending for a long time could come to their asylum interview and find that the asylum office no longer has jurisdiction. While it is unclear when this “de-designation” will happen, please continue to check CLINIC’s website for updates. Please read our practice advisory on “de-designation” for background and potential arguments to fight the government’s efforts to terminate unaccompanied minors’ determinations.