On January 31, 2018, USCIS announced a change in the way the USCIS asylum office schedules asylum interviews.  Specifically, starting January 29, 2018, the asylum office will now schedule their interviews based on a last-in-first-out system, focusing on those asylum seekers who filed for asylum most recently.  Much about this new scheduling procedure is still unclear, but here is what we know so far:

Background:

The asylum statute requires that asylum applicants receive an initial asylum interview or hearing no later than 45 days after the application was filed, barring exceptional circumstances.  INA § 208(d)(5)(A)(ii).  Likewise, barring exceptional circumstances, the adjudication of an asylum application must be completed within 180 days of filing.  INA § 208(d)(5)(A)(Iii).  As a result, prior to about 2014, most asylum offices regularly interviewed asylum applicants within 45 days of filing and issued a decision within about 60 days of filing.  This timeline began to get increasingly longer around 2013/2014.  This occurred primarily because of a significant increase in asylum seekers filing applications with the asylum office and in individuals undergoing credible or reasonable fear interviews at the border after requesting asylum.  (The asylum office is responsible for conducting credible and reasonable fear interviews and because most individuals going through the credible and reasonable fear process are detained, their interviews are prioritized over those of non-detained applicants.) 

These increases in affirmative (asylum office) filings and border interviews coincided with the violence in Central America and Mexico that increased at that time and has continued today, causing many Central American and Mexican men, women, and children to flee to the United States.  Because the asylum office has initial jurisdiction over the asylum applications of all unaccompanied immigrant children, the significant increase in children fleeing Central America to seek asylum in the United States meant that more asylum seekers were filing for asylum with the USCIS asylum office, rather than the immigration court.  Moreover, USCIS prioritized the cases of unaccompanied children over adult applicants, causing further delays of those adult applications.

Fast forward four years later and there are significant backlogs at asylum offices across the country, where it frequently takes three or more years after filing for an adult applicant to be scheduled for an asylum interview.

Scheduling Changes: 

In response to this backlog and alleged “fraud” concerns, USCIS has purported to return to the scheduling timeline pre-backlog, where an applicant will receive an interview about a month after filing, no matter if the applicant is an unaccompanied child or adult.  The announcement states that USCIS will prioritize cases in the following ways:

1. 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.
2. Second priority: Applications that have been pending 21 days or less.
3. Third priority: All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings.

Significantly, pursuant to the information in this announcement, it appears that USCIS will no longer prioritize unaccompanied immigrant children’s cases. 

As noted above, we do not know the date that USCIS is using to apply this new prioritization system.  For example, if an applicant filed on January 15, 2018, it is not clear whether the asylum office will schedule an interview within the next two weeks because that application has been pending for less than 21 days or if the asylum office will apply this 21-day rule to applications filed after January 29, 2018.

02/02/2018 update: the Chicago Asylum Office has informed NIJC that they will start conducting interviews under the last-in-first-out system the week of February 19th and that attorneys can assume any cases filed in the last week and going forward will be in the new scheduling paradigm.  The Chicago Asylum Office also states that as they are better able to manage the new scheduling system, they will continue to call in older cases in addition to the most recent filings.  Although it remains difficult to predict when older cases will receive interview dates, this response seems to indicate that for the immediate future, the asylum office does not anticipate interviewing older cases unless they were rescheduling requests. 

Likewise, we no longer know what interview timeline to expect for applications that were filed more than 21 days ago.  Previously, USCIS posted a scheduling bulletin on its website that stated, for example, that in December 2017, it was interviewing applicants who filed in December 2015.  That bulletin no longer exists.

Finally, while USCIS asserts a goal of returning to its pre-backlog timing, it is unclear how the many rescheduled cases in need of new interview dates and the credible and reasonable fear cases will impact the scheduling timeline.

Practice Pointers: 

Despite the current confusion surrounding the new scheduling system, NIJC advises that pro bono attorneys take the following steps in their affirmative asylum cases:

1. Prepare the asylum case as soon as possible.  As it becomes more difficult to predict when a client’s interview will occur, it is critical that attorneys prepare their clients cases as quickly as possible.  If delays occur, it is easy to quickly update and supplement a previously prepared application package, but it is very difficult to prepare a client affidavit or gather corroborating evidence at the last minute.  Affidavit preparation takes significant time and multiple clients meetings.  NIJC strongly encourages attorneys to meet with their clients early and often to prepare the strongest possible case. (See NIJC’s webinar on affidavit preparation for additional recommendations.)  Remember, no matter where your client falls in the backlog, you will only receive two weeks’ notice of the asylum interview.
    
2. Reschedule an asylum interview only if necessary.  The Chicago Asylum Office is usually willing to reschedule an asylum office interview so long as there is a reasonable basis for the request.  However, rescheduling the interview stops the client’s asylum clock, meaning that if the client has not already accrued 180 days on her asylum clock prior to the rescheduling request, she will not be able to obtain employment authorization while waiting for the new interview date.  The asylum clock will not restart until the client attends the new, rescheduled interview date and it is not currently clear how long it will take for the asylum office to reschedule interviews.
    
3. Request that the client’s case be expedited or be put on the cancellation list, as appropriate.  The Chicago Asylum Office has always encouraged attorneys to request their client’s interview be expedited if they feel there are compelling humanitarian reasons to do so.  Most of the time, a compelling humanitarian reason needs to involve a derivative family member in danger in the client’s home country or significant medical or mental health concerns, but other scenarios may also be sufficient.  In addition, the Chicago Asylum Office maintains a cancellation list where attorneys can request to be contacted for a last minute interview if another applicant has to reschedule or cancel an interview date.  Please reach out to your NIJC point-of-contact if you think your case is appropriate for expedited treatment.  If you would like your case to be placed on the cancellation list, please mail or fax a letter to the Chicago Asylum Office.
    
4. Maintain regular communication with the client.  As delays increase for some cases and interview dates become more unpredictable for others, it is critical that attorneys remain in regular contact with their clients so that when the attorney receives two weeks’ notice of the interview, they can immediately connect with their client and meet to prepare for the interview.  NIJC recommends that attorneys check-in with their clients on a monthly basis.

Important Notice for Attorneys Representing Unaccompanied Immigrant Children:

The new scheduling announcement is likely to have a particularly detrimental effect on unaccompanied immigrant children’s cases for two main reasons.  First, unaccompanied immigrant children generally seek asylum based on harm they experienced as children and may find it particularly difficult to remember and clearly articulate the details of those experiences, as they get older.  Second, it is expected that in the near future, the asylum office will begin to redetermine whether children who were previously deemed unaccompanied, remain unaccompanied for the purpose of asylum office jurisdiction.  However, it is rumored that that the asylum office will not make this determination until the asylum office interview itself, meaning an unaccompanied child may have to wait multiple years for an interview, only to be informed that the asylum office does not actually have jurisdiction over her case.  At present, no official confirmation of a new, “dedesignation” process for unaccompanied children exists.  NIJC will provide additional details on our website at http://immigrantjustice.org/index.php/policy/blog once any new information is obtained.

NIJC is working to obtain more information from the Chicago Asylum Office and Asylum Office Headquarters to help clarify the current scheduling system.  Please continue to check NIJC’s website at http://immigrantjustice.org/index.php/policy/blog for updates as we receive them.