It is the job of a lawyer to learn about your situation and then advise you of your options. You want to know, "If I do X, what will happen?" In many areas of the law, attorneys can provide this type of advice. If you rob a bank and get caught, you will go to jail. If you sign a contract and then breach your agreement, you will be liable for damages. If you fail to pay taxes, you will face criminal and civil penalties.

But in immigration law--and particularly in asylum law--it is often impossible to provide precise advice. The unfortunate fact is that asylum seekers must live with significant uncertainty.

There are really two distinct problem areas: Asylum law and asylum procedure.

The bigger problems for most asylum seekers are procedural. People want to know how long their case will take, when will they receive (or renew) their Employment Authorization Document (EAD), what happens if they need to travel while the asylum case is pending, and if they receive asylum, how long do they have to wait to bring relatives to the U.S. or get a Green Card. From the perspective of a lawyer, these questions are difficult or impossible to answer because time frames are almost completely unpredictable.

Why is this so? The basic problem is mathematical--there are too many asylum applicants and not enough resources to properly deal with their cases. The U.S. government has used its limited resources to try to address the range of difficulties affecting asylum seekers, with varying degrees of success.

In terms of affirmative asylum cases, under the current system, which is called LIFO or last-in, first-out, the Asylum Office gives priority to new cases. Under LIFO, if you file a case today, you have priority over someone else who filed years ago and who still has not received an interview. However, because of other priorities (i.e., the border), very few new cases are being interviewed, and whether or not you get an interview is random. In other words, the Asylum Office does not care whether you have a lawyer or whether you have a strong case or are separated from family members. If they have an interview slot, they will randomly choose a "new" case to be interviewed. For this reason, when you file a case, you should be prepared for a "fast" interview (within a few months after filing), just in case you are one of the very few people who receive an interview in that time frame.

If you do not receive an interview in the first several months after filing, there is no way to predict when you might be interviewed. We do not know whether the Asylum Offices will interview backlogged cases from oldest to newest or from newest to oldest, or whether they will just randomly choose cases from the backlog (which currently stands at nearly 800,000 cases). You can try to expedite your case, but most such attempts are not successful, and while it helps to have a strong reason to expedite, whether a particular expedite request will succeed or not seems (to me at least) mostly dependent on luck.

If you have a case in Immigration Court, the timing is unpredictable in different ways, which seem to vary from court to court (there are currently more than 2 million cases pending in our nation's Immigration Courts). In some locations (like where I live), many new Immigration Judges have been hired, and the courts have randomly advanced hundreds of cases, often without sufficient notice or regard for attorney availability. In other locations, there has not yet been an influx of new judges, and cases are moving slowly. And of course, there is the problem of cases being randomly canceled, sometimes at the last minute, which adds yet another layer of unpredictability to the whole process (though to be fair, this problem seems less prevalent than it used to be).

Aside from the courts and the Asylum Offices, wait times for many other associated applications--including Advance Parole to travel, EADs, Green Cards, Refugee Travel Documents, and follow-to-join petitions for asylee relatives--are also highly unpredictable, and usually quite long--you can check estimated processing times for some of these applications at the USCIS website, but be aware that these "estimates" are often not very accurate. It may be possible to expedite some such cases, but again, results are inconsistent and unpredictable.

One area where we have seen improvement is the initial EAD, where wait times have been reduced to (usually) one or two months. Of course, that did not happen voluntarily--it required a lawsuit against USCIS to force the agency to abide by existing regulations. We have also had an improvement of sorts for EAD renewals. Now, as long as you file to renew before your existing EAD card expires, you receive an automatic 540-day extension of the old card, which is usually enough time to get a new card without any gaps in employment eligibility.

Besides procedural unpredictability, the substantive law of asylum can also be unpredictable. The law changes when one Administration tightens or relaxes the rules, or when various federal courts issue decisions. These changes are fairly frequent and often have a substantive effect on asylum eligibility. Because we cannot know in advance what changes will occur, it is sometimes difficult to evaluate an individual applicant's likelihood of success. Also, sometimes the law changes while a case is pending, and so a strong case becomes weaker or vice versa.

Aside from changes to the law, the Immigration Judge or Asylum Officer who decides your case makes a difference in how the law is interpreted, which can have a big effect on whether a case is approved or denied. While most decision-makers are reasonable, middle-of-the-road types, some are "easy" and others are quite "hard." If you happen to land on the wrong adjudicator, even a strong case can get denied. If you have an Immigration Court case, you can learn about your judge's grant rate here (newer judges are not listed). For Asylum Office cases, you will not know who will decide your case until you arrive at the interview. Again, all this makes predicting outcomes very difficult.

The unpredictable nature of asylum, the many unknowns, and the long delays all add up to create an extremely stressful process for most people (I have written a bit about ways to cope here). We can hope that the U.S. will one day be able to get a handle on asylum cases and start to improve the system. Until then, perhaps knowing about these problems as you move through the process will make the experience more bearable.

Originally posted on the Asylumist: