Just before Christmas 2020 and without any advance warning, the Trump Administration changed the deadline for submitting documents to Immigration Court. Previously, documents were due 15 days before the Individual Hearing. The new rule requires that documents now be submitted 30 days before the Individual Hearing. For busy lawyers, who have many cases and many different deadlines, this was equivalent to throwing a wrench into the gears of the immigration machine. Changing a deadline like this has a ripple effect, and--more than two months later--we are still adjusting to the new rule.

Of course, this was not the first (or worst) effort by the prior Administration to sabotage the immigration system, but it does illustrate how a small procedural change can have an outsized impact: When a lawyer is struggling to adjust to a new rule, it affects the lawyer's ability to do his best work, and this in turn has potential negative consequences for a client's case.

In the case of this particular rule, I was hopeful that the Biden Administration would reverse course immediately and return us to the 15-day deadline. Going back to the old rule (or even the old, old rule, which was 10 days) makes sense during the pandemic, when so many cases are being postponed--why submit evidence when the hearing is likely to be canceled anyway? Alas, with regards to the Immigration Court rules, we have not yet seen substantive changes from the new Administration.

Speaking of Immigration Courts and the pandemic, EOIR--the Executive Office for Immigration Review, the office that oversees the Immigration Courts--created a web page to update noncitizens and lawyers about Covid-related postponements. Unfortunately, that web page is basically useless, and does not tell us about Individual Hearing cancellations until the last minute--if we are lucky. In the case of Master Calendar Hearings, most of which are canceled, it gives us no information at all. Again, it would be nice to have some predictability. Why not determine in advance which cases are going forward and give everyone some advance notice about that? It seems to me that this would benefit court staff as well, since they have to field phone calls about whether cases are going forward and deal with applicants who appear for court cases that have been canceled.

Predictability is a problem at the Asylum Office as well. Under LIFO (last in, first out), the Asylum Office aspires to interview newly filed cases first. However, due to the pandemic and a general lack of resources, few LIFO cases are actually interviewed. The Asylum Office literally chooses LIFO cases to interview at random: They have a certain number of interview slots for a given day, and a computer randomly assigns cases to those spots.

Since few LIFO cases are interviewed, it does not make sense for busy lawyers to file complete cases (instead we file only the I-589 asylum form and documents such as passports, marriage certificates, and birth certificates). We have to use our time efficiently, and completing cases that will not be interviewed for years is not efficient (especially since much of the work will have to be re-done once the interview date arrives). Even for individual applicants, it does not make sense to file a complete asylum case, since they will likely have to submit an updated affidavit and evidence by the time the interview is scheduled (multiple affidavits and evidence submitted at different times creates the possibility for inconsistencies and may also be confusing for the Asylum Officer).

It seems to me that there are a few possible solutions here: (1) Go back to FIFO (first in, first out), where asylum cases are interviewed in the order received and we have the Asylum Office Scheduling Bulletin, which gives us an idea about when to expect an interview; (2) Stick with LIFO, but actually interview all (or most) new cases. LIFO simply makes no sense when probably less than 10% of new cases are actually being interviewed; or (3) Stick with LIFO, but give more advance notice for the interview. That way, on the (relatively) rare occasion that a case is actually scheduled for a LIFO interview, the applicant (and the lawyer) have time to prepare properly.

These are just a few examples of the broader problem. Under the Trump Administration, every effort was made to keep asylum applicants and their advocates off balance. This was done through constant and arbitrary rule changes and procedural changes, which made it difficult for lawyers to manage case loads and for applicants to receive due process of law.

The Biden Administration has pledged to restore integrity to our nation's immigration system. A big step in that direction will be to restore predictability.

Originally posted on the Asylumist: www.Asylumist.com