In a meeting held earlier this month, we received some updates from the Asylum Division. Although Acting Director Sue Raufer could point to some positive developments in asylum world, the news is generally pretty bleak. In a development that will shock no one, the worst news relates to the backlog, which is growing at an unprecedented rate.

Before we get to the substance of the updates, I want to talk a bit about the agency's leadership. We have an Acting Director. We also have two Acting Deputy Chiefs. My not-totally-clear understanding is that an Acting leader has more limited power than a confirmed leader. Whether this makes any difference in the operation of the agency, I do not know, but the fact that we still have acting leaders nearly two years into the Biden Presidency makes me feel that USCIS is not prioritizing the Asylum Division.

Whatever is the case with their leadership, the most recent data makes clear that Asylum Offices are not keeping up with new filings. Indeed, the Asylum Division is receiving about 14,000 new asylum applications per month, or about 165,000 new cases in Fiscal Year 2022 (which ended on September 30). This represents a 78% increase over FY 2021. Of these new cases, 60% come from five countries: Cuba, Venezuela, Haiti, Guatemala, and Colombia. Overall, the backlog of pending cases has grown from 438,500 on December 31, 2021 (when we last had data) to 543,000 on September 19, 2022. This is an increase of more than 100,000 cases--or nearly 24%--in less than nine months!

Why is the backlog growing so quickly?

Before we received the new data, I suspected that an influx of cases from Afghanistan was impacting the backlog. Since the Taliban seized control of their country, our government has evacuated about 88,000 Afghans to the United States. Rather than grant residency to these refugees, we have given them a two year temporary status. While some Afghans may have found other ways to obtain permanent status, many have no choice but to seek asylum. To make matters worse, Congress--the very entity that could have granted them Green Cards--has instead mandated that Afghan asylum seekers receive priority over other cases. Such cases should be interviewed within 45 days of filing and decided within 150 days. This means that everyone else is shunted aside so the evacuees can have their cases heard. What surprised me about the new data is how few Afghans had actually filed for asylum--as of September 19, the Asylum Division had received about 7,100 such cases and conducted 2,900 interviews. This represents only about 4% of all new filings, and so presumably, the effect of these applicants on the backlog is--so far--not very significant.

I suspect that the bigger reason for the growing backlog (aside from the large number of affirmative filings) is the Southern border. When an asylum seeker arrives at the border and requests protection, he receives a credible fear interview or--for people who have previously had a CFI--a reasonable fear interview. These are initial evaluations of asylum eligibility. Given the large number of migrants arriving at the border, many Asylum Offices are tasked with interviewing these new arrivals. The latest data shows that Asylum Officers conduced about 57,000 CFIs and RFIs in FY 2022.

Another important reason for the growing backlog is the pandemic. Until March 2022, the Asylum Offices had been interviewing fewer people in order to accommodate social distancing rules--each person (officer, applicant, and attorney) was in a separate room connected by video. Fewer interviews naturally leads to longer delays and more people stuck in the backlog.

The new data does reveal some positive developments. For example, since March, Asylum Offices have implemented Covid policies that account for current conditions, and at least at my local office (Virginia), in-person interviews are back on. Indeed, during my last visit to the Asylum Office, it was more crowded than I had seen it since the pandemic began. Given that pandemic restrictions are largely being abandoned, we can (hopefully) expect more interviews in the current fiscal year.

Another positive development is Asylum Officer hiring. There are currently about 800 AOs nationwide, and the Asylum Division is authorized to hire up to 1,024 officers. The agency hopes to achieve a 95% fill rate by December 31, 2022. More officers should be able to help slow the growth of the backlog and--perhaps--start interviewing the longest pending applicants (supposedly, some of the new AOs will be delegated to work on pre-2016 cases, though so far, we have seen precious little evidence for this).

So while there are a few reasons to be hopeful, overall, I am not feeling particularly optimistic. Pandemic restrictions wax and wane, but experts are predicting a possible surge during the colder months. If so, the Asylum Offices' ability to interview applicants may be reduced. Also, while hiring additional officers is good news, we have been hearing about efforts to "hire up" for years, but hiring (and retention) has never kept up with the asylum case load. Finally, unless we get a handle on the Southern border and deal with Afghan evacuees in a more rational manner (i.e., pass the Afghan Adjustment Act), Asylum Officers will not have the capacity to keep up with new affirmative filings, let alone make a dent in the backlog.

For those stuck waiting, it is still possible to attempt to expedite a case if there are exigent circumstances. But this is not a solution that can work for most applicants, and it certainly won't help resolve the systematic problems at the Asylum Division. To address these challenges, we need regulatory and legislative changes, both of which require a level of political will that has heretofore been lacking. I know that the current Administration wants to improve the situation, and I hope that in the second half of President Biden's term, they will move more aggressively to help all those who are waiting.

Originally posted on the Asylumist: www.Asylumist.com