New immigration policy leaves asylum seekers in the lurch

New immigration policy leaves asylum seekers in the lurch
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The Trump administration has wasted no time taking further aim against asylum seekers, individuals fleeing persecution in their home countries and seeking protection in the United States. Earlier this week, President TrumpDonald John TrumpTrump warns Iran's Rouhani: Threaten us 'and you will suffer' Pompeo: Iran's leaders resemble the mafia NYT's Haberman: Trump 'often tells the truth' MORE referred to asylum seekers as taking advantage of “loopholes” and Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump ramps up scrutiny of legal immigrants Data confirm that marijuana decriminalization is long overdue The FIRST STEP Act sets up a dangerous future MORE, has also made his animus for asylum seekers quite clear.

Asylum seekers can either apply for asylum affirmatively with the asylum office, or raise their fear of return to their home country as a defense to removal proceedings. The backlog at the asylum offices, for affirmative asylum seekers, includes around 311,000 individuals. Many of these asylum seekers have now been waiting one, two, three, four, and even five years for an interview with an asylum officer.

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Until recently, asylum interviews were scheduled chronologically according to when the asylum applicant submitted their application; the wait was far too long, but there was an end in sight. On January 29, however, the Asylum Office issued a new memo explaining that they will now prioritize adjudication of the most recently-filed applications, those pending 21 days or less. While this may be a relief for asylum seekers who have just filed their applications or are about to file, for the more than 300,000 asylum seekers who have already filed and patiently waited in line, the government has effectively constructed a wall blocking adjudication of their applications and leaving them in legal limbo indefinitely.

Every month, asylum seekers file more applications than the asylum offices have capacity to interview. In June of 2017, the last year for which statistics are available online, the asylum offices received 11,414 applications and scheduled interviews for 9,753 applicants. It is this capacity gap — having more applications enter the system each month than leave the system — that has created the backlog. This adjudication disparity also means that with the new priorities, there is no plan in place for the asylum office to ever reach the applications that have been languishing in the backlog.

Why has the government made this seemingly illogical change in how asylum applications are processed? The January 29 memo refers to reducing “the incentive to file for asylum solely to obtain employment authorization.” Asylum seekers are allowed to file for work authorization after their asylum application has been pending for five months and generally receive their work permit within the first year. The government is apparently concerned that non-genuine asylum seekers will file for asylum solely to obtain a work permit.

It is true that asylum seekers who are forced to wait years for decisions on their applications are entitled to work authorization: a necessary stopgap because the United States does not offer any financial assistance to asylum seekers while their cases are pending. While President Trump called for yet more money for border officers in his State of the Union, he has not requested more funding for asylum officers despite the glaring need for additional resources to properly adjudicate these cases. Instead he demonizes those who have sought protection in the United States as exploiting “loopholes.” But American asylum law is a lifeline not a loophole.

Back in the 1990s, the last time the asylum system had built up a substantial backlog of asylum cases, Congress amended the Immigration and Nationality Act (INA) to decrease any perceived incentives to file for asylum simply to receive work authorization. The 1996 changes to the INA imposed a waiting period for asylum seekers to receive work authorization, required the commencement of removal proceedings for asylum seekers who were not granted asylum by an asylum officer, and imposed a lifetime bar on receiving any immigration benefits for those who filed frivolous asylum applications.

Being stuck on a line with no mechanism to ever move forward, is irrational and inhumane. Making matters worse, asylum seekers are often forced to flee their homes without all of their family members — leaving children or a spouse behind. After an asylum seeker is granted asylum, she has the right to file a petition for family reunification for children under the age of 21 and a spouse. This process generally takes over a year. So, for asylum seekers who have already been waiting years for their asylum interview, already facing prolonged separation, there is now no end in sight to their wait to reunite with children or spouse.

The administration’s rhetoric and its actions consistently ignore the fact that the number of individuals seeking asylum in the United States is not due to a spike in fraudulent applications, but instead reflects the humanitarian crises south of our border in Central and South America and refugee crises around the world.

Hundreds of thousands of vulnerable people have given up everything to pursue the dream of freedom from fear in the United States, as our asylum laws allow and America’s founding values require. Sadly, the Trump administration is doing its best to turn that dream into a nightmare.

Lindsay M. Harris is an assistant professor of Law at the University of the District of Columbia — David A. Clarke School of Law and serves as vice chair of the American Immigration Lawyers Association’s National Asylum and Refugee Committee and as vice chair of the Board of the Asylum Seeker Assistance Project.

Victoria Neilson is the legal director of Immigrant Justice Corps and a member of the American Immigration Lawyers Association’s National Asylum Law Committee.