If you've filed an asylum application recently, you may have noticed that receipts are taking longer, and many applications are being rejected for seemingly minor omissions. What's going on?

Starting about a month ago, our office has had a number of new asylum applications returned to us after a longer-than-expected delay. The reason is because we left certain boxes on the form I-589 blank. Mind you, the boxes that we left blank were boxes where there was no answer--for example, for a client without a middle name, we left the "middle name" box blank. In another case, on the signature page where the form asks for your name in your native alphabet, we left it blank because the client's native alphabet is the same as the English alphabet, which was already included in an adjacent box. In other words, things we've been doing for years with no problem have now resulted in applications being rejected. The issue seems to be that USCIS has changed its practice and now requires all boxes to be filled. This would have been fine, if they had told us in advance. They did not. As a result, many people's cases are being rejected and delayed, we have to incur extra expenses and wasted time, and people who have one-year bar issues now have some extra explaining to do. All because USCIS changed its policy without providing advance notice.

Except for that lack of notice, this change is not a big deal. If you are filing a new case, and you have a box on the form that will be left blank, you should write "N/A" for not applicable. If you have no middle name, or no apartment number, or no social security number, do not leave the box blank, write N/A. If you have three siblings, but the form has room for four, write N/A in the fourth box. If you've only entered the U.S. one time, and the form provides room for three entries, write N/A in the remaining two spaces. For questions such as the ones about your spouse and children, if you check that you do not have a spouse or child, I do not think you need to write N/A in every box (though given USCIS's capriciousness, it couldn't hurt). Make sure you check all the "yes" or "no" boxes on pages 5 through 8 of the form, and if you check "yes," provide an explanation in the corresponding space. Also, on the signature page of the I-589, there are some check boxes that people often overlook. Failure to check those boxes can also result in a rejection.

So why did USCIS implement this new policy? And why didn't they tell us in advance?

Giving USCIS the benefit of the doubt, it makes sense that the I-589 form is 100% complete. Blank spaces--especially for information like names, Alien number, and family members--can create issues for the case. Assuming--and perhaps it is a big assumption--that USCIS does security checks in advance, this information is necessary to implement a complete check. Also, if the Asylum Officer researches the case in advance of the interview (again, another big assumption), it is helpful to have all pertinent information. In short, I think it is fair to require that applicants complete the form and answer all questions, and this includes writing "N/A" where a particular question does not apply.

That said, the problem here is not that USCIS now requires a complete form. The problem is that USCIS changed the definition of "complete" without telling us in advance, and has rejected scores of applications that do not meet the new requirements. In my office alone, we've had about six or seven cases rejected in the last three weeks. This is probably more cases than we've had rejected in the previous 15 years of my practice as an asylum lawyer. And I am not alone. Many other attorneys are commenting on our list serves about the same issue.

Now, to be completely fair, USCIS did quietly post something on their website--without any sort of announcement--in maybe late September, but by then, it was too late for applications that had already been submitted. If you look at their website today, and check the section "Where to File," and then scroll all the way to the bottom, you will find this warning--

We will not accept your Form I-589 if you leave any fields blank. You must provide a response to all questions on the form, even if the response is “none,” “unknown” or “n/a.” We will not accept a Form I-589 that is missing the explanation of why you are applying for asylum or that is missing any addendums that you reference in your application.

Don’t forget to sign your form! We will reject any unsigned form.

Why this information is listed under "Where to File" and why it is not more prominently displayed, I do not know (similar information can be found on page 5 of the I-589 instructions). But the decision to start rejecting cases that do not meet this new standard shows--at best--a complete indifference to the plight of asylum seekers and to their right to a fair process.

For those who have not had an asylum application rejected, it may be difficult to understand how upsetting it is. Preparing the application is time-consuming and can be very stressful, especially for people who are already traumatized. When the application is returned, it is often re-arranged and contains numerous USCIS stamps and hand-written information. There is also a two-page Notice of Deficiency, which usually (but not always) explains what needs to be corrected. In the most recent incidents, it took USCIS six or seven weeks to return the errant forms. So applicants, who thought that their cases were pending, their Asylum Clocks had started, and their status in the U.S. was safe, are learning after a month and a half, that none of those things has happened and they have to start over again.

So if your asylum application has been rejected, what do you do? The short answer is, read the Notice of Deficiency, make the required changes, and re-submit the form. But also, double check all the boxes on the form, and if there are any that you left blank, make sure to fill those boxes with N/A, none, unknown, or whatever you think appropriate. Don't leave them blank. When we re-submit a rejected application, we include a copy of the Notice of Deficiency. Finally, when you re-submit the application, keep a copy of the Notice of Deficiency and any pages that were stamped by USCIS (usually, USCIS stamps the first page of the I-589 with the date the form was received). This provides evidence that the application was filed and rejected. It is important to have such evidence, especially in cases where the one-year asylum filing deadline is an issue, but it is good to have it for any case, as you never know when you might need such proof. Also, the American Immigration Lawyer's Association is tracking such cases in order to communicate the problem to USCIS. If you would like to be include in this effort, please email me.

What about the situation where the I-589 was initially filed within one year of your arrival in the U.S., but now the case has to be re-filed after the one-year deadline? Not to worry; the regulations provide an exception to the one-year bar where--

The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter.

8 C.F.R. § 208.4(a)(5)(v). The key here is that the application must be re-filed within a reasonable period of time after it is returned to you. To prove that, you need a copy of I-589 stamped by USCIS and the Notice of Deficiency, which provide the initial filing date, and you need proof that the application was re-filed within a reasonable period of time. For that, you need the USCIS mailing envelope and the Notice of Deficiency, which both show when the form was returned to you. For example, we received a returned I-589 on November 7 (after the one year bar), but the stamp on the I-589 indicates September 24 (before the one year bar). We did not cause the delay between September 24 and November 7; USCIS caused that delay. Since we have the Notice of Deficiency and the USCIS mailing envelope, we can prove that that portion of the delay was not our fault. We re-submitted the I-589 on November 8, and we have a copy of our mailing receipt. Thus, our client should be protected in terms of the one-year bar, since we only caused one day of delay, which is certainly a "reasonable" period of time to re-file a rejected application. How long is a "reasonable period" of time to re-file? There is no specific definition, and so the sooner you re-file, the better, but if it takes you a few weeks (maybe to consult with a lawyer), that should be fine.

What about the Asylum Clock? Unfortunately, as I understand the clock, it will not start running until the application is received and accepted. And so in the above example, my client's clock will start running on November 9 (assuming USCIS accepts the application this time); it will not start on September 24, when the I-589 was initially received (once 150 days passes on the Asylum Clock, an applicant can apply for a work permit).

I think that is enough for now. This recent incident of USCIS using the asylum bureaucracy--which is meant to facilitate asylum applications--as a weapon against asylum seekers is not an isolated event. In a future post, I will discuss USCIS's plans to raise filing fees and delay or block work permits for future asylum seekers. Stay tuned for more good news...

Originally posted on the Asylumist: www.Asylumist.com.