The American Immigration Lawyers Association (AILA) surveyed more than 300 immigration lawyers (including yours truly) about asylum and has issued a new report with findings and recommendations: High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better.

The report makes some useful suggestions for improving the system, and it is well worth a look. It also has some significant flaws (at least in my opinion). As I see it, though, the biggest problem--as usual for these types of things--is how to prevent the U.S. government from simply ignoring the report and continuing on its merry way.

Let's start with a few of the positives. The AILA report is mainly concerned with expedited asylum procedures implemented by the Biden Administration. These procedures will mostly affect applicants arriving at the U.S. Southern border, but the problem of rescheduling and advancing cases with little warning is nation-wide. The report notes that--

The basic steps of preparing an asylum application take an estimated minimum of 50 to 75 hours. This work cannot be done in one continuous period; instead, it is carried out over the course of several months. Cases with significant complexity can take far more time than this estimate.

This is an important observation, which AILA backs up using empirical data. Forcing asylum applicants to expedite their cases is simply not compatible with properly preparing a case, or with due process of law. In part, this is because asylum seekers often face barriers that other immigrants do not, such as past trauma or inability to access documents after having fled the home country. Many asylum seekers do not speak English or are unfamiliar with the requirements for obtaining protection. Others need expert witnesses to explain physical or psychological scars or to explicate country conditions. In addition (and this is conspicuously absent from the AILA report), for asylum seekers who wish to hire an attorney, it is very difficult to afford the fee when you only have a short time to make payments.

To remedy this problem, AILA recommends that asylum seekers be given sufficient time to find a lawyer and prepare their case. This seems simple enough, but given the government's behavior, it is clear that they do not get it. Hopefully, the report will help on this front.

Another recommendation--one that I like because it is creative and offers a realistic solution--is to lower the evidentiary standards for asylum seekers subject to expedited proceedings. The same could be done for asylum seekers who are forced to represent themselves. If you have to do your case quickly or without a lawyer, the burden of proving your case should be lessened.

Now let's discuss some negatives. My main beef with the report is that it focuses too much on the Southern border (and yes, I know this is the same as my "positive," but hear me out). In a world with limited resources and limited political capital, advocates seem to spend an inordinate amount of time arguing about the border. In a way, this is understandable, since the border is a humanitarian disaster. But in a report about asylum, the border is only one part of the story.

Also, the fact is, there is little support among the American public for more liberal border policies, and anti-democratic forces (i.e., the current Republican party) have exploited this sentiment at the voting booth. Given the political damage caused by perceptions about the border and the small chance for real progress, I think it is a mistake for advocates to devote so much of our limited energy and resources towards migrants arriving through Mexico. Instead, I would like to see at least some attention paid to another humanitarian disaster--the affirmative asylum system, which is less contentious politically and where strong advocacy might actually get us somewhere.

Last I heard, there were more than 787,000 cases in the affirmative asylum backlog, and since some cases include dependents, we can assume that well over a million people are stuck waiting, many for six, seven, eight years or longer. The AILA report's only suggestion here is that USCIS should hire more Asylum Officers, but that has been ongoing for 10+ years, and the backlog has only continued to grow. Creative solutions are available--I wrote about some here, including shorter, more efficient interviews, eliminating LIFO, creating transparent rules for expediting, and premium processing. Some smaller advocacy groups have been lobbying for improvements to the affirmative asylum system, but support from AILA in this realm would give the effort an important boost.

The biggest problem, though, is getting the U.S. government to pay attention to advocates and listen to our ideas. Unless that happens, nothing we say will make a difference. On that note, I recently read a book by disability rights advocate (and member of my synagogue) Judith Heumann, who passed away earlier this year. In regards to her struggle to improve the laws and regulations for people with disabilities, she writes, "If you believe in something, do whatever you have to do to get your point across." She continues--

When someone ignores you, it's an intentional display of power. They're essentially acting like you don't exist, and they do it because they can. They believe that nothing will happen to them. Ignoring silences people. It intentionally avoids resolution or compromise. It ignites your worst fears of unworthiness because it makes you feel that you deserve to be ignored. Inevitably, being ignored puts you in the position of having to choose between making a fuss or accepting the silent treatment. If you stand up to the ignorer and get in their face, you break the norms of polite behavior and end up feeling worse, diminished, demeaned.

Sound familiar? Like disabled people--and everyone else in our country--asylum seekers have rights: The right to due process of law and the right to a fair hearing, being two of the most important. But how do we enforce those rights? How do asylum seekers get an interview or hearing and get a decision? Some have been lobbying Congress. Others have been holding demonstrations. I suppose there is no simple answer, but it is clear that waiting, hoping, and even complaining are not getting us anywhere. It is also clear that these are systematic problems that demand systematic solutions. Expediting individual cases is not the answer.

Asylum seekers and we in the advocacy community need to be thinking about how to get the government's attention; how to force the system to change. Until we figure out how to do that, I'm afraid that nothing is going to get better.

Originally posted on the Asylumist: