Here's a question that I often hear: My friend filed for asylum after me and she already had her interview. Why didn't I get my interview yet? As with most asylum-related questions, the answer is, it's complicated.

As you probably know, the Asylum Office is operating under the LIFO--Last-in, First-out--system. This means that new cases get priority over old cases. LIFO was implemented in January 2018 with the hope that it would reduce fraudulent asylum filings. The idea is that if the Asylum Office can quickly interview and deny fake cases, it will reduce people's incentive to file such cases. In turn, this will lead to fewer new asylum applications, which will reduce the backlog and help legitimate asylum applicants.

Of course, things did not work out as planned. The first problem is that the premise of LIFO is simply wrong: The system is not being overwhelmed by fake asylum cases. Even if it were, LIFO provides no real disincentive for applicants to file fraudulent cases. That's because from nearly the moment it was implemented, LIFO didn't work. There were always too many new cases to interview. As a result, some new cases got fast, LIFO interviews; others did not. Since there was never a very high probability of receiving a quick interview, LIFO did little to dissuade the hordes of supposedly-fraudulent asylum seekers from filing their cases.

At the same time, LIFO stranded tens of thousands of asylum applicants who had been expecting interviews, but who were cast into indefinite limbo by the policy change. For several years prior to LIFO, we had FIFO--First-in, First-out, meaning that applicants were interviewed in the order that their cases were received. First come, first served.

Aside from being more fair, FIFO was more predictable. Under FIFO, the Asylum Division published the Affirmative Asylum Scheduling Bulletin. This handy chart listed the different Asylum Offices and gave the filing date for cases being interviewed in each office. So for example, you could see that the Newark Asylum Office was interviewing cases filed in July 2014. If you filed your case in August 2014, you would know to expect an interview soon. This allowed you time to prepare. In truth, the Scheduling Bulletin was never terribly accurate, but it gave asylum seekers a rough idea about when their interview would be, and at least they could track the (very slow) progress of each office.

So what we got in January 2018 was a change from a slow but fair system, which was somewhat predictable, to an arbitrary system where some new cases were interviewed, others were randomly lost in the backlog, old cases were completely ignored, and no one had any idea when or if they would receive an asylum interview.

At the same time as LIFO was being implemented, the Asylum Division was hiring more officers, and my local Asylum Office (in Virginia) announced a plan in late 2019 to work through all their backlogged cases within two years. Whether that would have worked, I do not know, since the pandemic arrived a few months later and basically shut everything down.

Fast forward to today--four months into the Biden Administration with pandemic restrictions slowly being lifted--and it is now very unclear what the future holds for the Asylum Offices and the LIFO system. Will more asylum seekers be able to reach our country? Will large numbers of Asylum Officers continue to be deployed to the Mexican border (thus rendering them unavailable to interview affirmative applicants)? Will the Biden Administration return to FIFO?

All these questions remain unanswered, but I am not optimistic we will see an end to LIFO anytime soon. Why? Because the last time I heard anything from the Asylum Division about LIFO (back in 2019), it seems they believed the new system was working to deter fake asylum applicants. Indeed, overall filing were down after LIFO was implemented. But as they say, coincidence is not necessarily causation, and in this instance, there were other reasons that asylum filings dropped after January 2018. The most likely explanation is that fewer potential asylum seekers were able to reach the U.S. This was a time of travel bans and increased scrutiny for visa applicants. If fewer people come to the United States, it stands to reason that fewer people will apply for asylum.

With the history lesson out of the way, let's return to our original question: Why did your friend who filed after you, receive an interview before you?

One reason you might be stuck is that you filed before January 2018. For a while, you were advancing in the queue. But then the government eliminated the queue and placed you in indefinite limbo, with no idea about when to expect an interview. If you filed after January 2018, the Asylum Office tried to interview you, but since there were more applicants than interview slots, some people got interviews and other did not. The selection process for LIFO interviews was random. If there were 10 interview slots on a given day, a computer randomly chose 10 "new" cases to assign to those slots. It was (according to the former director of the Arlington Asylum Office) truly random, and did not depend on the merits of your case, whether you were separated from family members or any other reason.

And so if you are wondering why your friend got an interview and you did not, the short answer is that your friend had better luck than you. In total, there are about 386,000 "unlucky" cases, representing about 600,000 "unlucky" people. For those stuck in the backlog, there are few options. You can try to expedite. You can try a mandamus lawsuit. Or you can keep waiting. While you are waiting, you might consider contacting your Representatives in Congress to let them know what you think about this mess.

The news is not all bad, however. The current Administration is less hostile and more competent than the last. COVID restrictions are easing. The Asylum Offices have increased their staff, and once they re-open more fully, they should be interviewing greater numbers of people. So despite the difficulties and uncertainties, there are some reasons for hope, and we need to keep our eyes on the faint light at the end of this dark tunnel.

Originally posted on the Asylumist: