Joan Fernandez, JD Anticipated May 2024, Law and Public Policy Scholar
The Transactional Records Access Clearinghouse (TRAC), an independent and nonpartisan entity that provides comprehensive information about U.S. immigration enforcement, reports that the average time it takes for an asylum seeker in the United States to have their case heard in immigration court is 1,621 days, or nearly four and a half years. While long, this wait time may initially appear to be reasonable because asylum seekers are allowed to remain in the U.S. during the pendency of their immigration proceedings; they are physically safe from their persecutors abroad.
This is not necessarily true for their families. Once granted asylum, an asylee can reunify with their spouse and children by filing Form I-730, Refugee/Asylee Relative Petition, with U.S. Citizenship and Immigration Services (USCIS), the federal agency tasked with adjudicating immigration benefits. Asylees often flee their home countries without much planning, leaving behind their loved ones. These relatives often live in hiding from the same persecutors that their asylee relatives narrowly escaped.
The most recent U.S. Department of Homeland Security Office of Immigration Statistics Refugees and Asylees Annual Flow Report shows that children have consistently comprised about seventy percent of those entering the U.S. on approved asylee relative petitions in the last three years. These cases had a ninety-two percent approval rate in the first three quarters of fiscal year 2022.
Previously waiting an average of 7.9 months for USCIS make a decision on their petitions in 2017, these children now wait an average of 28.5 months for a decision, which is a processing time increase of more than 360 percent. The processing time has continued to increase despite a December 2021 USCIS policy memorandum directing the agency to end the Trump-era policy requiring asylee relative petition interviews in every case. This Trump-era policy nearly doubled the processing times in some of these cases.
In rescinding its Trump-era asylee relative petition interview policy, USCIS noted that these delays “prolong the vulnerability to danger and insecurity many asylee and refugee spouses and children face in refugee-producing countries of origin or countries of first asylum.” This unconscionable delay directly contradicts a core value of U.S. immigration policy: family reunification.
Seeking Case Resolution Through Administrative, Judicial, and Congressional Channels
U.S. congressional leaders, such as U.S. Representative Chrissy Houlahan (D-PA 6th), have reported that immigration benefit processing delays at USCIS have increased well over one thousand percent in the last two years alone. Illinois Democratic Representative Jan Schaowsky (D-IL 9th) similarly reports, “Often constituents are in tears on the phone with my staff [because of these delays].”
A petitioner whose case is outside the normal processing time may request a case status update by filing a service request with USCIS. However, it is difficult to know if they will receive an actual status update because USCIS case processing times change from month-to-month. A case that is currently considered outside of normal processing times this month may be considered as being within normal processing times by the next month. There is no meaningful explanation for these monthly shifts in processing time. Consequently, a petitioner that files a service request may receive an agency response about a month later stating that the case is now within normal processing times, is in line for adjudication, and nothing further. They are back to where they were a month earlier: without an idea of what is happening with the case and, at the very least, when any movement in the case will occur. Even when a case remains outside the normal processing time, by the time the petitioner receives an agency response, it is possible (and likely) that the response is no more than a sentence or two stating that the petitioner’s case will be reviewed in the order it was received.
Other mechanisms to resolve delayed case processing have likewise been closed off or create their own set of risks. The Office of Citizenship and Immigration Services Ombudsman (Ombudsman), an independent governmental entity serving as a liaison between the public and USCIS, for instance, recently announced it has ceased communications with USCIS encouraging resolutions to long-pending cases. In its 2022 annual report to Congress, the Ombudsman described USCIS backlogs as an “avalanche” that has never been “as severe as the one the agency currently faces.”
Given these delays and the inability of petitioners to reach USCIS about their pending cases, many immigrants have sought to compel USCIS to decide their petitions through federal court mandamus actions. However, because the denial of an asylee relative petition is unreviewable in federal court, the asylee must take a calculated risk about the dangers of filing a mandamus action. Six hundred forty-seven mandamus actions regarding pending immigration applications and petitions against USCIS were filed in May 2022, representing the largest number of mandamus actions filed in nearly fifteen years. TRAC, which reported this data, highlights that the lack of a “meaningful solution” is having a “spillover effect” in that it has led to more resources being expended on federal court litigation.
Passing a Statutory Amendment to Require a Six-Month Agency Decision Period for Asylee Relative Petitions
I propose the enactment of a statutory provision requiring the expeditious adjudication of asylee relative petitions to shorten the time of separation of an asylee and their spouse or child. Even though it will not resolve the larger agency-wide issues that created the USCIS “avalanche,” it would facilitate family reunification for a class of individuals the U.S. government has already vowed to protect.
Specifically, the agency decision-making timeframe should be six months because that timeframe is used in another provision protecting other similarly vulnerable children. These children, known as special immigrant juveniles (SIJ), are children granted immigration relief based on parental abandonment, abuse, or neglect. The children of asylees have, in effect, lost their parents and parental protection while living in hiding abroad due to harms the U.S. government has determined constitute persecution. Because of their overlapping vulnerabilities, these populations of children deserve the same expeditious processing of their applications for immigration relief.
The relatively speedy SIJ petition adjudications is the product of Section 235(d)(2) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008. Despite the statutory six month rule, USCIS reported an average 8.4-month adjudications period in 2022 for SIJ petitioners. Although USCIS is outwardly in statutory violation of the mandated six-month adjudications window based on its current SIJ petition processing time, the delay is modest in comparison to the wait that children of asylees must wait. Like asylee relative petitions, SIJ petitions were included in USCIS’ announcement as priority cases for processing within six months. The agency has approached this goal in the SIJ context while departing from it in the asylee relative petition context.
While Trump-era immigration policies worsened the backlog in immigration court and USCIS, the longest processing time for SIJ petitions was 16.8 months in 2019. This delay was not as drastic as the processing time delay the children of asylees experienced. Importantly, the SIJ beneficiaries awaited in the U.S. as their cases were decided, where the latter group remained abroad in often precarious conditions.
As the asylee petition processing times continue to increase, so, too, has the erosion of the promise to reunify asylees with their children and spouses. It is time that the U.S. government recommit to asylees by executing its promise, and for it to do so within a reasonable time. Adding a statutory provision to the INA requiring USCIS to adjudicate asylee relative petitions within six months will ensure asylees and their loved ones are protected.