The USCIS Ombudsman's Proposal To Restrict The Jurisdiction Of The Asylum Office Would Waste Resources, Inhibit Government Scrutiny Of The Applications, And Do Nothing To Reduce Fraudulent Claims
On March 20, 2006, U.S. Citizenship and Immigration Services (USCIS) Ombudsman Prakash Khatri submitted a proposal that would limit USCISís jurisdiction over asylum applications to in-status applicants. All other applicants would receive initial adjudication of their claim in removal proceedings. Additionally, the proposal recommends having Immigration and Customs Enforcement (ICE) perform credible fear determinations for aliens arriving at a port of entry and imposing a filing fee for Form I-589. The proposal and the justifications for it reveal that the Ombudsman does not understand the role of USCIS and that he did not even attempt to obtain input from two key stakeholders: ICE and the immigration judges. This is surprising, since the Ombudsmanís own role is to have an intimate understanding of USCIS so that he can resolve problems for consumers and also to gather input from stakeholders to formulate intelligent recommendations. He failed in this instance.
Restricting the Jurisdiction of the Asylum Office
Under the Ombudsmanís proposal, USCISís Nebraska Service Center would receive all asylum applications by mail. Those with asylum applications that indicate a present lack of valid immigration status would receive a Notice to Appear for removal proceedings. The few applicants with valid status would be interviewed by the Asylum Office. The Ombudsman stated that the adjudication of asylum applications from out-of-status applicants is not a proper role for USCIS, but is rather an ďenforcement activityĒ that should be handled by ICE and immigration judges. Another proffered justification for the change is that most asylum applicants (70%) do not receive asylum from the Asylum Office anyway; instead, the Asylum Office refuses to grant asylum and refers the case to an immigration judge. The Ombudsman claims this statistic indicates a flawed system prone to abuse and fraud. He asserts that fewer fraudulent applications would be submitted if out-of-status applicants were immediately referred to an immigration judge. He also asserts that applicants apply for asylum with the Asylum Office to delay their removal.
The proposal is wrong on all of these points. First, USCISís proper role encompasses the adjudication of asylum applications by out-of-status applicants. It is not an enforcement activity. It is stupefying that the Ombudsman would argue to the contrary since USCIS adjudicates many other applications for persons who lack valid status besides asylum applications. In the past, it adjudicated huge numbers of legalization applications for special agricultural workers and long-term residents under IRCA. At present, it adjudicates tens of thousands of adjustment of status applications for persons who lack valid status at the time of the adjudication. Some qualify under 245(i) and many more simply are visa overstays who are immediate relatives of United States citizens. USCIS also adjudicates hundreds of thousands of applications for Temporary Protected Status each year, again most from persons who initially lacked valid status. Under the Ombudsmanís logic, all of these applicants should not receive adjudication of their applications by USCIS because they are in the United States illegally, just as are many asylum applicants. The Ombudsmanís logic would require them to apply for status in removal proceedings. So why has the Ombudsman not recommended that all of these applicants be funneled immediately into the already overburdened immigration courts? Perhaps he just does not see that there is no logical distinction between them and asylum seekers. Or, perhaps even he realizes how impractical that would be.
Yet, sending all asylum applicants to the immigration courts without initial screening by the Asylum Office is just as impractical. Even though 70% of asylum applicants may be referred to an immigration judge, that does not mean that adjudication by the Asylum Office is a waste of time. Rather, the Asylum Office plays a valuable role. Out-of-status asylum applicants with clearly approvable cases benefit by receiving quick adjudication of their case without the delay and expense created by the formalities and procedures inherent in removal proceedings. ICE and immigration judges benefit tremendously too. While the Ombudsman is correct that the immigration judge decides the case de novo, that does not mean that the immigration judge and ICE do not rely heavily on the initial interview and investigation by the Asylum Office. They do; they rely on the Asylum Office to narrow the issues. Often, when I represent an asylum seeker who has been referred to an immigration judge, the judge and the ICE attorney focus exclusively on the issues relied upon by the asylum officer to refer the case. They do so because it is much easier at the informal asylum interview to quickly sort through the numerous issues raised by every asylum application and dispose of the easily resolved ones. Therefore, the Asylum Office interview helpfully narrows the issues for court, just as discovery (depositions, interrogatories, requests for admission, etc.) narrows the issues in civil litigation. Forcing the ICE attorney and immigration judge to do this screening under the strictures of a court hearing would consume hours more time than it does at the Asylum Office.
One of the key issues that the Asylum Office screens for is credibility, and that screening also assists the immigration judge with his or her assessment of credibility because the immigration judge can compare the applicantís testimony with their testimony at the Asylum Office to see if there are any material inconsistencies. The ICE attorney often facilitates this by testing the memory of the asylum applicant with questions similar to the ones asked at the Asylum Office (the ICE attorney has access to the asylum officerís notes). This testing would be impossible, however, if the case were immediately referred to an immigration judge without an initial adjudication by the Asylum Office. Thus, contrary to the suggestion of the Ombudsman, restricting the jurisdiction of the Asylum Office would actually encourage fraudulent applications, rather than discouraging them, by eliminating an opportunity to detect inconsistencies. The failure to consider this issue also indicates that the Ombudsman failed to consider the concerns of an important stakeholder, ICE.
Finally, the Ombudsmanís assertion that applicants file asylum applications to delay their removal proceedings and prolong their stay in the United States is no longer correct. This may have been the case before the asylum reforms were implemented, when adjudication by the Asylum Office could drag on for years. Now, however, the Asylum Office typically issues a decision to grant or refer the case within three months. Thus, a person who applies for asylum without an approvable claim will probably end up in removal proceedings within three months (much quicker on average than those who simply remaining underground). Nor is there any interim benefit to filing an asylum application because it no longer results in the issuance of an employment authorization document (unless delays attributable to the government exceed 180 days, which is extremely unusual in my experience). Moreover, to the extent the Ombudsman implies that an applicant may be able to delay ongoing removal proceedings by filing an asylum application with the Asylum Office, that is entirely incorrect. Once removal proceedings have been initiated, only the immigration judge presiding over those proceedings has jurisdiction over an asylum application (not USCIS). See 8 C.F.R. ß 1208.2(b).
Transferring Credible Fear Determinations to ICE
The Ombudsman also recommended transferring credible fear and reasonable fear determinations from the Asylum Office to ICE for aliens arriving at ports of entry. This recommendation again conflates benefits adjudication with enforcement activity, since the credible fear and reasonable fear determinations are but an initial step in an application for asylum or withholding of removal under the Convention Against Torture. The role of ICE officers is not to perform this benefits adjudication. Their training and orientation is entirely that of law enforcement (arrest, charging with immigration violations, detention, and removal). They have no training in asylum law, country conditions, or how to sensitively interview a victim of rape or torture. Asylum officers do have the relevant training, so it makes sense for them to use it to conduct the initial interviews that determine whether an arriving noncitizen may apply for asylum or whether he or she will be sent home to the country of alleged persecution. Duplication of this training for ICE officers in general or a special corps within ICE would be a senseless waste, as well as contrary to its mission
Imposing a Filing Fee
Finally, the Ombudsman recommends imposing a filing fee for Form I-589, the form used for applying for asylum and withholding of removal. USCIS currently does not charge a fee for this application in recognition that most asylum applicants lack funds, especially those who are applying within one year of arrival (as they are required to do). Further, asylum applicants almost never have lawful authorization to work in the United States and are likely working under the table for substandard wages if they are working at all. Therefore, even if a fee were imposed, many applicants would have to apply for a fee waiver. This would defeat the Ombudsmanís stated purpose of transferring the costs of the adjudication to the applicants themselves.
Requiring individual fee waiver requests also will introduce substantial delay into the asylum process. Adjudication of fee waiver requests is very time consuming. It requires review of financial documents, bills, and pay stubs to ensure that the applicant really does not have the means to pay the fee. For example, through a contract with a nonprofit agency, I have represented many naturalization applicants over the last year. Those that request fee waivers typically wait six to eight months longer than those that pay the fees because of the backlog of fee waiver requests at the California Service Center. There is no reason to think it would be any different if the Nebraska Service Center were suddenly inundated with waiver requests for asylum applicants.
Most asylum applicants, however, do not have the financial documents, bills, or pay stubs that would prove their inability to pay. This is so because they often live in homes with friends and family where they are not on the lease or deed (because they lack legal status). They also lack the credit that is necessary to receive or pay bills. Instead, they must use cash or rely on the credit of other persons. Nor are they likely to receive pay stubs, since any employer willing to hire them illegally probably will pay them under the table Thus they will be unable to verify their inability to pay the filing fee except through an affidavit. An affidavit is impossible to verify without documentation, so USCIS will either have to deny fee waivers to many deserving applicants or it will have to lower its standards to the point where the fee waiver request is a meaningless formality. The first option is unacceptable; the second would result in pointless delay for the applicant and wasted effort by USCIS.
Ombudsman Prakash Khatriís recommendations are misguided and would wreak havoc with one element of the immigration system that is working fairly well. Not only will the recommendations incur additional expense and delay for asylum applicants with clearly approvable cases, but they will also weaken the ability of the government to detect fraudulent applications. Applicants with true claims would be harmed as a result because harsh legislative restrictions on asylum will likely follow.
Scott Mossman is an immigration attorney practicing in Oakland, California. His firm represents asylum seekers, family-based immigrants, and students. Scott Mossman can be reached at: email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.