In April, I wrote about our efforts to lobby Congress for help with the affirmative asylum backlog. Those efforts have finally born some fruit. Last week, forty Democratic members of Congress wrote a letter to Alejandro Mayorkas, the Secretary of the Department of Homeland Security, and Ur Jaddou, the Director of USCIS.

In the letter, the Members of Congress express their concern about the affirmative asylum backlog, which currently stands at well over 400,000 cases. The letter notes that many people in the backlog have already suffered severe trauma in their home countries, and expresses particular concern for "those who have languished in the backlog for extended periods of time—some close to seven years." Many of these applicants are separated from immediate family members and have not seen their spouses or children for years.

Unless it passes a new law, Congress does not have the authority to order DHS or USCIS to take particular actions. However, this new letter is significant in that--for the first time--Congress is "recommending" certain actions by the agency to address the backlog. I imagine such recommendations must be taken seriously, given that Congress does ultimately control funding for DHS and, to a lesser extent, USCIS (USCIS is largely funded by user fees). Hopefully, the agencies will take a look at these recommendations and make some changes to help those who have been waiting the longest. The main recommendations are as follows--
1. Designating a portion of asylum officers to work “back to front” to address the backlog and ensure the longest-pending cases are addressed. This would give those who were moved to the back of the line by the 2018 change to LIFO the opportunity to receive a more timely decision on their cases.

2. Creating a five-year “cutoff period” after which time a pending asylum application would be prioritized in the application queue. This would provide greater uniformity in wait times while reassuring applicants that they will not wait decades for an interview.

The letter refers to these recommendations as a "balanced approach," since they do not call for the elimination of LIFO, the last-in, first-out system whereby new cases have priority over older cases. But cases that have been stuck in limbo for more than five years would receive priority treatment. This would at least give some hope to those who have been waiting the longest.

To be sure, these recommendations are not exactly what we had hoped for, but they are a positive development. If nothing else, the letter shows that someone is finally paying attention to affirmative asylum seekers. More than that, these recommendations would ease the burden for those most severely harmed by LIFO.

Personally, I think the better approach would be for the Asylum Division to return to FIFO--first in, first out. Under that system, which was in effect between 2015 and 2018, applicants are interviewed in the order that they were received--first come, first served. Aside from being more fair, the big advantage of FIFO is that it is more predictable--under FIFO, the Asylum Division published the "Affirmative Asylum Scheduling Bulletin," which listed each Asylum Office and indicated which cases were being interviewed at that office. So for example, you could see that the Newark, New Jersey office was interviewing cases filed in November 2014. If you filed in December 2014, you knew to get ready for your interview.

Since the advent of LIFO, things have been chaotic--some new cases are randomly chosen for interviews; others are not. Many people are trying to expedite their cases, but there are no rules about expediting, and so that system is completely unpredictable. The result is that no one knows when to expect an interview and lawyers like me are unable to manage our case loads or effectively advise our clients. So my preference is that we return to FIFO and the Affirmative Asylum Scheduling Bulletin, along with a set of rules about which cases will be eligible for expedition.

Nevertheless, this new development ain't bad. Congress is paying attention, and that is certain a positive sign. Also, the Asylum Division will hopefully recognize the need to help those applicants who have been waiting the longest (and hopefully implement an Affirmative Asylum Scheduling Bulletin or some other system to provide advance notice for those cases, so people waiting more than five years will have an idea about when to expect their interview).

There's one more point worth noting about the letter. While it was signed by Members of Congress, it only happened because of the lobbying efforts of torture survivor organizations and a number of torture survivors/asylum seekers themselves. I attended a few of the Zoom calls with Congressional staff, and it was clear to me that the torture survivors made an impact. They talked about their persecution in the home country and how they'd come to the United States for protection. They reached safety, but then got stuck in the asylum process. The survivors explained how hard it was to live for years in uncertainty and stress. They talked about missing their family members, and how they were unable to explain the long delay to their children and spouses. In some cases, the psychological harm and the stress was worse than the persecution they suffered back home. These testimonials made a difference. It was obvious that the staffers were paying attention to the survivors and were moved by their stories. I've written before about the power of asylum seekers' stories, and with this lobbying effort, I saw that power in action.

It is a great shame that asylum seekers need to become political activists just to get their cases interviewed. But to the extent that the Congressional letter and our lobbying efforts gain traction and improve the system, asylum seekers themselves should get much of the credit.

Originally posted on the Asylumist: