Chief of Asylum Division Explains Why It Adjudicates Cases Using a “Last-In-First-Out” System in a Declaration Signed in November 2019

by David L. Cleveland

Andrew Davidson, Chief of the Asylum Division, filed a 14-page declaration dated November 27, 2019, in a recent court case. In that declaration, he explains why his division first decided cases on a “First In, First Out” basis, why it changed to “Last In, First Out,” then changed back to “First In, First Out,” and then changed back to “Last In, First Out.”

His declaration is Document #14 in Zhang v. Cuccinelli,  Case No. 19-cv-5370,

(E.D.N.Y.) and is published on the Louise Trauma Center website on the Asylum Officer Materials page, labeled as “Davidson 11-27-19.” [www.louisetrauma.weebly.org]

Here follows some of what Mr. Davidson said in his numbered paragraphs:

“4. The Asylum Division is composed of a cadre of specially trained adjudicators known as Asylum Officers. By statute and regulation, Asylum Officers must receive training on international human rights law, non-adversarial interview techniques, and country conditions information. See 8 U.S.C. § 1225(b)(1)(E); 8 5 C.F.R. § 208.1(b).” 

“29. Further, the agency [is hiring new asylum officers]...Each new hire is expected to complete nearly 300 hours of training in total.”

“9. If, after an interview, the Asylum Officer decides to grant asylum to the applicant, the Asylum Office issues the approval to the applicant. If the decision is not to grant asylum and the alien has no lawful immigration status, the Asylum Office issues a Notice to Appear (NTA), which places the alien in removal proceedings and refers the case to the EOIR for de novo review of the asylum claim by an immigration judge (IJ).”

Mr. Davidson did not explain what system was used in 1994 and earlier years. Perhaps it was “First In, First Out.” In paragraph 17, he asserts that “the filing of fraudulent, otherwise non-meritorious, or frivolous claims in order to secure employment authorization” increased before 1995. He did not cite any studies concerning these “bad” applications. He did not state what percent of the applications were “bad.”

For example, he could have said: “Our research indicates that from 1980 to 1990, the percent of bad applications was X%. From 1990 to 1994, the percentage of bad applications was Y%.”

In 1995, the division began to use “Last-In-First-Out” to adjudicate cases. This meant that recently filed cases were interviewed ahead of older cases. [Paragraphs 17-19]. The backlog was reduced: 464,000 cases were pending at the end of FY 1995; 15,000 cases were pending at the end of FY 2012. [Paragraph 20; numbers are rounded].

But, in 2013, there was a large rise in credible fear and reasonable fear cases. Asylum officers were diverted to interview those cases. So, “the effectiveness of the LIFO scheduling system in discouraging frivolous, fraudulent or otherwise non-meritorious filings was undermined…” Paragraph 23. 

Mr. Davidson indirectly suggests that during this time period, the number of “bad” applications increased. He does not cite any studies; he does not state what percentage of the applications were “bad.”. He does not compare the percentage of “bad” applications that were filed: a] before 1995; b] from 1995-2012; c] from 2013-2014.

In 2014, the division implemented a “first-in-first-out system.” [Paragraph 23]. But, there were “negative consequences:” an increase in applications, and “frivolous, fraudulent, or otherwise non-meritorious asylum applications..” Paragraph 24. Mr. Davidson did not say directly that there was an increase in “bad” applications, but he implied it. He does not state what percent of the applications were “bad;” nor does he compare applications filed during this period with other time periods.

“25. In order to stem the growth of the agency’s asylum application backlog and identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier, on January 31, 2018, USCIS announced that it would return to the LIFO scheduling system.” At this time, the backlog was 311,000 cases. Paragraph 26.

LIFO “ reduced the incentive engendered by the backlog to file fraudulent or otherwise non-meritorious asylum claims just to obtain work authorization.” Paragraph 19. 

“11. As of the end of the 2019 fiscal year (FY) on September 30, 2019, the backlog of affirmative asylum cases awaiting adjudication by USCIS totaled 340,810. In contrast, the backlog at the end of FY 2012 was 15,526.” 

LIFO “discourages frivolous, fraudulent, or otherwise non-meritorious asylum filings and reduces the overall growth in filings…” Paragraph 42, last sentence.

COMMENTS OF THE AUTHOR

Mr. Davidson is very concerned about “frivolous, fraudulent or otherwise non-meritorious asylum filings.” He uses that exact phrase eight times. He mentions “fraud and abuse” in paragraph 26.

Mr. Davidson does not mention upheavals, revolutions, climate change, and change in country conditions in other countries. He does not mention the suffering of applicants in their home countries; he does not mention the suffering of applicants in our country, as they wait for years and years with no adjudications.

He did not mention the purpose of asylum. He did not say, for example:

“For almost a century, Congress has recognized that citizens of foreign states are sometimes forced to flee from persecution in their home countries, and it has been the policy of the United States government that this country ought to serve as a place of refuge for persons who are in such distress.” Kiakombua v. Wolf, 498 F. Supp. 3d 1, 11-12 (D.D.C. 2020). Huisha-Huisha v. Mayorkas, No. CV 21-100(EGS), 2021 WL 4206688, at *1 (D.D.C. Sept. 16, 2021)

= = =

Tracy L. Renard, Acting Chief, wrote a letter dated July 9, 2021 to the Honorable Gerald Connelly (D-VA] and provided this information:

Since re-instituting LIFO, the backlog grew 10% in FY 2018, 7% in FY 2019, and 13% in FY 2020. During these three years, the number of new filings decreased slightly [from 106,000 to 94,000].

= = = =

Does LIFO reduce bad applications more than FIFO?

Mr. Davidson does not answer this question. Without citing any data, he notes that during the FIFO years 1980-1994, bad applications increased. Paragraph 17. During the LIFO years 1995-2014, he suggested that bad applications increased. During the FIFO years 2014-2018, he suggests that bad applications increased. During the LIFO years 2018-2019, he asserts that LIFO “discourages” bad applications. But he cites no data.

LIFO is unfair to earlier-filed applicants

“First come, first served” is fair. It is hard to argue it is unfair. If you are standing in line, and someone cuts in ahead of you, you get angry. Thousands of asylum applicants have been waiting since 2015. Under the current system, their cases will never be heard. Each year the backlog grows bigger and bigger. Mr. Davidson is concerned about discouraging bad applications in 2021. Instead, he should be concerned about the thousands who have been waiting for year after year after year.


About The Author

David L. Cleveland was the Chair of the AILA Asylum Committee [2004-05] and has secured asylum or withholding for persons from 48 countries. Based in Washington DC, he is available at 1949.david@gmail.com


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