Why USCIS’s ‘last in, first out’ method hurts asylum seekers – Law Journal for Social Justice

By Maliha Ahmed

“What is a judge going to say to you? ‘The evil that you experienced, what you lived through, has already changed, so you can return to your country now,’ and [then] what happens? You lost years trying to build your life in the United States, when in reality they are going to make you return.” – John Doe, an asylum seeker, on his pending case

Doe’s story unfortunately outlines the fate of most of the 1.6 million asylum cases currently awaiting a decision. While asylum promises applicants a safe haven, the backlog of applications rising to the greatest number of cases on record, making this seem like a near-impossible dream for many.

Individuals seeking asylum in the United States often must prove that they were threatened by imminent danger or persecution in their home country, but without proper legal representation they are likely to face an uphill battle. (Photo: Greg Bulla via Unsplash.)

United States Citizenship and Immigration Services (USCIS) currently utilizes the “last in, first out” method to process pending asylum applications, meaning that newer applications are processed first while older ones from years ago are processed later. While reducing the growing number of cases is imperative, it must not be done at the expense of violating due process protections, retraumatizing asylum seekers, or harming their family members.

What is Asylum, and Where Does Its Applicable Law Come From?

Asylum is a legal protection that may be granted to foreign residents fleeing from current or potential persecution. Asylum may be granted to individuals who: (1) meet the definition of a “refugee”; (2) are in the U.S. or arrived at an official port of entry; and (3) experienced past persecution or have a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.”[1] An individual may obtain asylum through either an affirmative or defensive process. Affirmative asylum refers to cases where an asylum-seeker has not been placed in removal proceedings. Defensive asylum refers to cases in which the individual is already in a removal proceeding, more commonly known as deportation.

The following statutes outline the right to apply for asylum:

Last In, First Out: Discussion

USCIS uses an approach called “Last In, First Out” (LIFO) to review asylum cases, which prioritizes recent applications over older ones. USCIS justifies this structure by claiming that the approach (1) provides a more effective means to address the asylum backlog issue and (2) deters fraudulent cases filed only to get work authorization. However, there is debate as to whether this method is truly the most efficient and best way to tackle the backlog. U.S. Representative David Cicilline (D-RI) and 39 other members of Congress highlighted this concern in a letter to USCIS director Ur Jaddou. The most notable line of the letter emphasized that despite USCIS utilizing the LIFO approach, asylum cases are increasing, with older cases sitting for years waiting for a decision. While proponents may believe LIFO helps by prioritizing faster processing times, the approach creates issues for both newer and older applicants.

Newer Applications

The LIFO method brings about two main problems for newer asylum applicants. First, applicants get less time to prepare for their case. This becomes even more of a problem since many applicants are self-represented and do not have much time to find an attorney or pro bono counsel to help them. Proper representation is crucial to protect an applicant’s due process rights and ensure a fair outcome, and successful cases brought by self-represented applicants seem to be the exception, not the rule.

A startling statistic sheds light on the treatment of asylum seekers with and without representation: the court granted relief to 44% of represented asylum applicants, compared to only 15% of self-represented applicants—almost a 66% decrease. [2] Despite this disparity, a self-represented litigant is expected to understand complex and conflicting immigration laws and stay on top of court deadlines with the same effectiveness as a trained attorney, with minimal access to helpful resources.

 Second, video teleconferencing (VTC) is being used more to process the growing number of asylum applications. However, attempts to increase efficiency also increase due process concerns. Not only are some detainees not able to consult an attorney, but they also have to juggle relaying information to an interpreter and listening to a judge in a video call. VTC also limits the number of people who can observe the trial, providing little-to-no accountability if a judge oversteps their authority in court. Finally, VCT makes it difficult to assess body language, eye contact, and other nonverbal cues, which judges factor into final decisions.

Among the most vulnerable are children, who may have difficulty understanding VTC. One recurring issue that Miriam Abaya, an associate at the Young Center for Immigrant Children’s Rights, underscores is that some children cannot comprehend that even though the video goes off on their end, it is still on in the courtroom, and the people on the other end can still see them. While faster processing times may seem like a priority in tackling the backlog issue, the processes used may come at the expense of self-represented applicants’ due process protections.

Older Applications

Asylum-seekers with older applications face many challenges due to longer wait times. Many applicants previously experienced horrific events in their home countries and are processing the aftermath while separated from their families for years waiting for their cases to be heard. As a result, individuals are left to continually recall horrific events such as genocide, targeted attacks, and torture, without any familial support.

Recounting these occurrences can be strenuous on an applicant’s mental health and can trigger “panic attacks, flashbacks, dissociative thinking, and other debilitating symptoms of Post-Traumatic Stress Disorder (PTSD).” This issue is heightened because experiencing these symptoms while narrating one’s story can affect the outcome of their case. If an applicant cannot present their story of persecution in a coherent way, they may be told their situation does not constitute persecution, and their asylum case may be denied.

Additionally, long wait times may hurt applicants trying to establish a well-founded claim for fear of persecution, especially if their persecutor is no longer considered a threat in their home country once their case is finally reviewed. If an applicant cannot establish either past persecution or a well-founded fear of future persecution, then their asylum case may be denied. However, even if an applicant can establish past persecution, their claim of well-founded fear is only presumed valid if the government does not meet its burden of showing that there is a fundamental change in circumstances. Stories like Doe’s (in the quote above) emphasize the arduous process that retraumatizes asylum-seekers, only for their cases to be denied because the “evil” they experienced has “changed.”

Applicants’ families residing overseas are also affected by the LIFO approach used by USCIS. Because applicants cannot petition for their immediate relatives until they are granted asylum themselves, their families are left to wait in their home countries. Some applicants report that their children have gone missing or continued to experience the dangerous conditions of their home country, which could have been avoided if not for the long wait times.

One example is provided by case manager Miriam Hauser in a report published by the Center for Victims of Torture. In the report, Hauser details that two of her client’s children went missing in Country X, which would not have happened if her client’s application was processed in a timely manner and her children were able to apply for reunification sooner.

Ultimately, USCIS’s “last in, first out” system ends up hurting both newer and older applicants. LIFO seeks to promote efficiency, but it does so by compromising applicants’ due process rights and mental health, as well as the security of their family members.

Resources for Asylum Seekers

While the LIFO method is still the current mechanism used by USCIS to process asylum applications, asylum-seekers can look to the following resources if their cases are backlogged:

[1] 8 U.S.C. § 1158(b)(1)(B)(i) (Asylum) (“The burden of proof is on the applicant to establish that the applicant is a refugee”).

[2] For a graphical representation of this disparity, visit: https://crsreports.congress.gov/product/pdf/IF/IF12158/3.

Maliha (she/her) is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law interested in immigration law, international law, and employment law. Before law school, she graduated from Arizona State University with a B.A. in Business Law and a B.S. in Business Data Analytics. Outside of school, she likes to go to local coffee shops and read or spend time with her family.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice (“LJSJ”) is the first student-run and student-created online journal at Sandra Day O’Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.
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