Anyone with a case before the Asylum Office knows that the system is not functioning properly. Applications take years--many people who filed in 2015 are still waiting for an asylum interview--and even after you are interviewed, it can take additional years to receive a decision.

For most applicants, the only way to move their case along is to file a mandamus lawsuit. Indeed, data from TRAC Immigration shows that the number of mandamus cases filed against USCIS has ballooned over the last few years. In Fiscal Year 2020, for example, there were 1,295 mandamus lawsuits against USCIS. For FY2023, TRAC estimates that USCIS faced more than 6,800 mandamus lawsuits (these include asylum cases and other types of USCIS cases).

The TRAC data is consistent with our experience and with what we've been hearing from officials at USCIS, who indicate that the only way to get an asylum interview is to sue the agency. Here, we'll discuss mandamus lawsuits and whether "premium processing" might be a better way to deal with delay at the Asylum Office.

Let's start with the basics: What is a mandamus lawsuit? Asylum applicants who have been waiting an unreasonable amount of time for their interview or decision can file a lawsuit in federal court and ask a judge to order the Asylum Office to do its job (i.e., complete the case). Before filing a mandamus lawsuit, the asylum applicant needs to "exhaust her remedies." This means that she needs to make "normal" efforts to get an interview or a decision. These include contacting the Asylum Office and asking them to give her an interview, contacting her Congressional representative for help, or maybe seeking help from the USCIS Ombudsman. When those efforts fail--which they usually do--the applicant can then file a mandamus lawsuit.

Rather than fight the lawsuit, the Asylum Office will usually (but not always) negotiate an agreement where they create a time frame to interview the person and issue a decision. The Asylum Offices generally do not want to litigate these lawsuits because that takes a lot of resources, and given the very unreasonable delays for affirmative asylum cases, most federal judges will ultimately order the Asylum Office to do its job. In other words, the Asylum Offices do not want to fight mandamus lawsuits because they know they will lose. And so it is more efficient to acquiesce and complete the case rather than fight the mandamus in court.

One problem with filing a mandamus lawsuit is that such cases are not free. While it is possible to do a mandamus without a lawyer, most asylum seekers are not comfortable with that, as the federal court system can be complicated and intimidating. Also, the Asylum Office may be more likely to fight the case where the applicant is pro se (unrepresented). Fees for private attorneys vary widely, but a reasonable range is probably $2,000 to $4,000 for most cases where the parties reach an agreement to complete the asylum case, and significantly more if the case is fully litigated in court. There is also a filing fee, which is $405 (low income people may be able to waive the fee).

Mandamus lawsuits also cost the government money and resources. The U.S. Attorneys' Office (which is part of the Justice Department) defends the lawsuits. My sense is that the government lawyers involved in these cases would rather be doing other things with their time, which is another reason these cases often settle. The federal court also spends time on mandamus cases, and while most of that work is done by staff, I would guess that federal judges are not thrilled about their increasing mandamus case load.

In short, the mandamus process is expensive and inefficient. But there is an alternative--premium processing.

Premium processing already exists for certain types of USCIS cases. Basically, the applicant pays an extra fee, and the case is processed more quickly. This obviously benefits the applicant who pays the fee and has his case completed, but it also benefits everyone else by removing expedited cases from the regular queue and by bring more money into the system.

To be clear, premium processing is not currently available for asylum applicants. I have been arguing for years that it should be available. Asylum seekers have paid for their journey to the U.S. and they often hire lawyers, and so many asylum seekers have the resources to pay for premium processing. In addition, many asylum seekers would welcome the chance to pay for faster service--thousands of them are already paying for mandamus cases, which is a total waste of money. That same money could be spent on premium processing, which would improve the asylum system for everyone.

The main objection to premium processing, at least as I understand it, is that it looks bad. USCIS does not want humanitarian applicants to pay a fee, and they do not want the appearance of asylum seekers "buying" status in the United States. It seems to me that the first objection was rendered irrelevant when the Trump Administration tried to impose a fee on all asylum seekers. The second objection is also moot, given that thousands of asylum seekers are already paying for their cases to be completed by filing mandamus lawsuits.

There are currently more than 1.1 million cases pending at our nation's Asylum Offices. Some of these applicants have been waiting six, seven, eight years or longer. The number of mandamus cases is rapidly increasing, and will pose a threat to the dockets of many federal district courts. Mandamus cases also waste tremendous amounts of time and money. Given the current status of our asylum system, something desperately needs to change. Premium processing is one possible solution.

Premium processing will benefit applicants who pay, and--to a lesser extent--applicants who do not pay. It will bring relief to U.S. Attorneys' Offices and federal courts. It is a creative solution whose time has come. Let's hope that USCIS will give it a try.

Originally posted on the Asylumist: