Visa Lawyer Blog

Articles Posted in Affirmative Asylum

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Today, July 16, 2019, the Department of Homeland Security and Department of Justice issued a joint interim Final Rule that has been published in the Federal Register and is effective immediately.

The interim Final Rule aims to place additional restrictions on the asylum application process and limit the eligibility of individuals seeking to apply for asylum.

What is the Rule about?

The Departments of Justice and Homeland Security are revising 8 C.F.R. § 208.13(c) and 8 C.F.R. § 1208.13(c) to add a new bar to eligibility for asylum for an alien who enters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States.

In a Nutshell:

With the passage of this rule, applicants for asylum who enter or attempt to enter the United States across the southern border, without having applied for protection in a third country outside their country of citizenship, nationality, or last lawful habitual residence, will not be eligible for asylum.

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The White House recently issued a Presidential Memorandum to strengthen asylum procedures and safeguard the asylum system against fraud.

The Presidential Proclamation specifically orders the Attorney General and Secretary of Homeland Security to take several measures to enhance the security of the asylum system by July 28, 2019.

These measures require the Attorney General and Secretary of Homeland Security to enact proposals and/or regulations that would:

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The immigrant caravan from Central America has now reached the Southwest border. Thousands of migrants are now waiting in Tijuana for an opportunity to apply for asylum at the San Ysidro and Otay Mesa ports of entry.

Over the Thanksgiving weekend, tensions begin to mount as members of the immigrant caravan rushed the border fence at the San Ysidro port of entry, attempting to enter the United States illegally. In response, U.S. Customs and Border Protection officers shut down both south and northbound traffic at the San Ysidro border crossing south of San Diego for approximately six hours.

The decision to close the San Ysidro port of entry during the holiday weekend was unprecedented considering that the San Ysidro port of entry is one of the busiest land border crossings in the world with 70,000 northbound vehicles and 20,000 northbound pedestrians seeking to cross each day. Many Americans were left stranded in Mexico waiting for the port of entry to re-open to re-enter the country after Thanksgiving.

The saga unfolded on November 25, 2018 when San Diego MTS suspended trolley services at the San Ysidro Transit Center due to increased tensions at the border. Passengers seeking to cross into Mexico were forced to transfer to bus routes traveling to the Otay Mesa border. In similar fashion, Caltrans San Diego announced several closures.

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USCIS has announced that beginning October 5, 2016 the validity period for initial and renewal employment authorization cards (EADs) will be extended from the previous one-year validity period to a two-year validity period, for asylum applicants eligible to receive employment authorization. EAD applications pending as of October 5, 2016 and all EAD applications filed on or after October 5, 2016 will receive 2-year EAD cards.

Asylum applicants cannot apply for employment authorization with their initial asylum applications. Applicants with a pending asylum application, who have filed for asylum on or after January 4, 1995, must wait until at least 150 days have passed since filing of their asylum applications (not including any delays that were caused by them) before applying for employment authorization. Once at least 150 days have passed since filing of the asylum application, and provided the application is still pending with USCIS, applicants may apply for employment authorization by filing Form I-765 Application for Employment Authorization using the (c)(8) asylum classification. On average it takes approximately 90 days for the I-765 to be processed, and for the employment authorization card (EAD) to be mailed to the applicant. Once you receive the employment authorization card you may begin to work immediately. You may also obtain a driver’s license for the validity period of your employment authorization, and a social security number by presenting your employment authorization card at the DMV and SSA near you. There is no fee to apply for your first employment authorization card if your asylum application is pending with USCIS or you have been granted asylum. If you are applying for a renewal EAD card (it is not your first time receiving an EAD) your application is subject to the filing fee.

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On September 7, 2016 the United States Citizenship and Immigration Services (USCIS) published the Affirmative Asylum scheduling bulletin which describes how the service will prioritize the adjudication of affirmative asylum petitions. USCIS has developed a three tier system to prioritize scheduling of interviews and adjudication of petitions.

USCIS has indicated that as of December 26, 2014 applicants who were scheduled for an interview, and who subsequently rescheduled their interview themselves, or had their interview rescheduled by USCIS, will fall under the first tier. These applicants will receive top priority. Applications that were filed by children will fall under the second tier and receive secondary priority for interview scheduling. Lastly, any other pending affirmative asylum applications are currently being adjudicated in the order that they were received by USCIS. Consequently, the oldest cases that were received by USCIS (cases that were received the earliest) are scheduled first. These applications fall under the third tier and have the lowest priority.

In sum, applicants who were rescheduled for an interview and child applicants will receive first priority.

All other applicants will be required to wait in line for an interview based on the date USCIS received their asylum application. The following table provided by USCIS outlines estimates of scheduling dates for asylum interviews by month and year. The table is based on current caseload and volume of applications waiting in line for an interview. Interviews are currently being scheduled taking into account time and resource constraints of local offices.  It is not uncommon for asylum offices to divert their resources to defensive asylum interviews.

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A new factsheet published by AILA and Kids in Need of Defense (KIND) provides statistics on the representation and removal of unaccompanied children and families facing removal proceedings before immigration court. The data concludes that an overwhelming number of unaccompanied children and families are ordered removed from the United States, despite having demonstrated a legitimate fear of persecution or torture and passing a credible fear interview, making these individuals viable candidates for asylum, prosecutorial discretion, or other relief from deportation. This is due to a lack of legal representation and legitimate concern for the due process of law.

Families Passing Credible Fear in preliminary interviews with federal asylum officers

On the whole, the majority of families in detention centers demonstrate a legitimate fear of persecution or torture and maintain a high rate of approval during credible fear interviews;

  • In preliminary interviews with asylum officers, approximately 90% of families successfully demonstrated a credible fear of persecution or torture;
  • Upon completion of these interviews, approximately 88% of detained families pass their credible fear interviews;
  • The USCIS Asylum Office has indicated that the credible fear passage rates remain unchanged—at a rate of 90%;
  • DHS data indicates that 53% of 121 individuals, arrested by DHS during the January raids, lacked legal representation before immigration court;

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In a bulletin released on September 11th the United States Citizenship and Immigration Services explains conditions relating to prioritization of interview scheduling for affirmative asylum applications. According to CIS, affirmative asylum applications began to be prioritized as of December 26, 2014 which fall under the below mentioned categories.

The categories which qualify for prioritization of interview scheduling include:

  1. Applicants who were scheduled for an interview, however the interview was rescheduled at the request of the applicant or by CIS (applicants in this category are normally scheduled promptly)
  2. Applications that were filed by children (applicants in this category are normally scheduled promptly)
  3. Pending affirmative asylum applications will be prioritized in the order they were received by CIS (first come first serve basis)

Pending affirmative asylum applications:

The following table outlines processing times for  interview scheduling by field office. The table estimates interview scheduling for applicants in the third category.

*Approximations are based on interviews scheduled during the listed month. Future estimations are determined by asylum office caseload and resources available to each office.

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