‘The backlog is just going to get bigger’: COVID-19 in the asylum process

Infographic of United States immigration and statistics
Helen Xu/Senior Staff

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For many asylum-seekers residing in the United States, reading the words “U.S. Citizenship and Immigration Services Offices Temporarily Closed to the Public” creates a sinking feeling in their stomachs.

Each year, thousands of asylum-seekers come to the United States to forge new lives for themselves and their families. Many have been waiting for months or even years to start the process of becoming a legal resident in the United States.

An asylum-seeker meets the definition of a refugee, or someone unable to return to their home country because of a well-founded fear of persecution, according to the website of the U.S. Department of Homeland Security. However, asylum-seekers differ from refugees in that they are currently within the United States or are waiting to be admitted at a site of entry.

According to the Department of Homeland Security, 38,687 individuals were granted asylum status in the 2018 fiscal year. The number of refugees admitted fluctuates each year, with 84,988 individuals being admitted in 2016 and 22,405 in 2018.

Yet, because of the COVID-19 pandemic, both asylum-seekers and their attorneys are scrambling to move forward as the system has slowed significantly. 

“It’s just important to realize that this is a hard time for everyone,” said Rachel Kafele, the managing attorney of Berkeley-based Oasis Legal Services, which focuses on helping LGBTQ+ immigrants. “A lot of our clients can’t access the same amount of government resources people in the U.S. can access.”

While hearings for detained immigrants are still proceeding, hearings for immigrants who are not detained have been postponed, creating an ever-changing landscape for attorneys. This is compounded by the closure of immigration offices, and immigration lawyers are finding themselves increasingly reliant on virtual meetings.

While different types of immigration attorneys have been affected by the closures in distinct ways, those who represent asylum-seekers face especially large challenges as the U.S. immigration system threatens to become even more backlogged.

COVID-19: A new ‘element of delay’

For current asylum-seekers, the path to legal residency seems bleak as they face heightened uncertainty caused by the postponement of their asylum interviews and the lack of job security, according to Joye Wiley, an immigration attorney at Wiley & Jobson LLP.

“A lot of immigration — not all of it — has come to a grinding halt. Any office where people are seen in person are closed,” Wiley said April 10. “That includes offices where people are holding interviews, that includes embassies or visa services. … We aren’t able to proceed on their cases at this point.”

On April 21, President Donald Trump announced a plan to put a 60-day halt on giving green cards to most immigrants, temporarily pausing many immigration services.

One of the biggest delays is the bureaucratic process, according to Wiley. She added that there are multiple steps in the process of applying for asylum status that produce an “element of delay.”

Wiley also said the closure of government immigration offices, which provide fingerprinting services, is a major challenge. She noted that until fingerprinting is made available, cases will not move forward.

While the application process is stagnating with the closure of government offices, the deadline for asylum applications remains the same, according to Kafele.

“The difficult thing during this pandemic is that immigration hasn’t made the extension of deadlines that is needed,” said Barbara Pinto, managing attorney at Oakland-based Immigrant Legal Defense. “Even though we have all been impacted, we have to continue as business as usual. There is no indication there will be extension of a deadline or that things will be allowed to file at a later date.”

Kafele added that she is worried this will have an impact on those who could have qualified for asylum status but will no longer qualify as they are not able to meet requirements, such as the need to apply for status within one year of arrival.

The dire case of the courts

While most immigration courts are closed to hearings, others, especially those dealing with detained immigrants going through removal hearings, are still open. According to Kafele, tough decisions have to be made by attorneys about whether to go to the courts in person or to hold virtual meetings.

In asylum hearings, potential asylum-seekers need to prove they have a well-founded fear of persecution in their home country by explaining all aspects of their situation to the judge. It is then up to the judge to decide if the migrant’s story fits the criteria to grant asylum status or, in some cases, if the migrant should be deported.

Kafele said holding meetings virtually could potentially lead to challenging situations, as everyone is in a different location. She added that the client may not be able to understand what is happening over video and that there could be problems with translating. She also said there may be instances in which a judge might question the client’s credibility and misunderstandings occur.

“(Asylum-seekers) don’t have the same chronological memory because the impact that trauma has on the brain’s development … can really impact someone’s ability to tell a story,” said Abby Sullivan Engen, a supervising immigration attorney at Oakland-based legal services agency Centro Legal de la Raza. “If you can’t meet with someone in person to see how they can tell (their story) … it can be really hard for our client to tell their story to the judge.”

Sullivan Engen added that another complication virtual hearings pose for attorneys is examining evidence without having it in front of them.

Postponed hearings present another level of uncertainty to the cases. Some immigration attorneys remain concerned about the conditions of detention centers.

“The main issue is that people are still in jail. You don’t want to postpone it indefinitely because they are in unsafe conditions,” Sullivan Engen alleged.

As of April 25, there are 29,675 immigrants who are currently detained by U.S. Immigration and Customs Enforcement, or ICE, nationwide, according to ICE’s website.

On April 20, Jesus Bernal, a district judge in California, ordered ICE to “identify and track” those detained who have preexisting conditions or who are at a particularly high risk of contracting COVID-19, according to court documents. Bernal also said ICE should consider releasing those who are more vulnerable to the disease.

According to Sullivan Engen, most immigrants do not have a criminal history, and the majority of those in detention centers are there only because of their immigration status. She added that the detention of immigrants is one of the few instances in which people are detained because of civil charges, rather than criminal ones.

Sullivan Engen also noted that she is concerned that immigration detention centers may be “psychologically damaging” for immigrants.

“We have to adapt and do the best we can to make sure due process is still being protected during this time, that all people are being protected, no matter their status,” said Monica Julian, an attorney at the UC Davis School of Law Immigration Law Clinic.

Wading through the growing backlog

While the COVID-19 pandemic has heightened uncertainty and made the application process more difficult for immigration lawyers to navigate, there were problems with the asylum-seeking application process before the outbreak as well, according to Kafele.

The court system is backlogged with more cases than it can handle, making it difficult for asylum-seekers to get a hearing, according to Sullivan Engen.

The postponement dates for hearings depend on the judge, according to Sullivan Engen. She added that judges who have been working on immigration cases for a while have crowded dockets and may already be booked for the calendar year. With newer immigration judges, hearings may be postponed for nine to 15 months, even before the pandemic, Sullivan Engen added.

“There are tens of thousands of people waiting for the asylum cases. We’ve had clients waiting since 2015. Now, the office is closed; they are going to fall even more behind,” Kafele said. “The backlog is just going to get bigger.”

Kafele added that she is worried that once the immigration offices open, they won’t hire more officers to be able to go through the backlog more efficiently.

The number of backlogged cases has been growing since 2016, according to Sullivan Engen. She added that more recent applications tend to be processed first, but now the applications are stalling. There is also a lower number of people available to conduct interviews compared to the volume of people who are applying.

Especially for cases that take a longer period of time to process, the journey to residency can produce anxiety. Two of Sullivan Engen’s clients have had their hearing postponed until 2023. She added that this postponement will result in her clients being in the United States for 8 and 12 years, respectively, with no firm status.

“It’s a really, really hard time right now,” said an anonymous source, who wishes to remain nameless because they are currently seeking asylum. “The week the lockdown started, I had an interview for my asylum case. Now, with the shutdown, I don’t know when I’ll hear my date. I’ve been waiting two years. I was so hopeful.”

The anonymous source also said they have not received a response from asylum offices and they do not know if and when their interview will be rescheduled.

COVID-19’s effect on law practices

The disease has also had a large impact on immigration attorneys’ communication with clients. In some cases, immigration attorneys were negatively affected by the shelter-in-place orders, as their offices were shut down and they could no longer meet with their clients. Others adjusted by switching to meeting with their clients virtually or via phone calls.

“There is a pronounced housing crisis in California and the Bay Area where people live in overcrowded living conditions,” Sullivan Engen said. “A lot of our clients are stressed with being cooped up and living with other people. It is very hard to have confidential attorney phone calls when you have eight people living in a bedroom.”

According to Kafele, it is also more difficult to build the same level of trust with her clients without physical face-to-face meetings.

Some attorneys, however, saw an increase in demand. Pinto added that with attorneys now having expanded availability at different times throughout the day, they are seeing a rise in demand for their services conducted through phone calls and Zoom meetings.

Immigration law practices also noted that their clients had been adversely affected economically by COVID-19.

“There is fear and anxiety that maybe (the asylum-seekers) were working on something to file for immigration and now their case is on hold,” Pinto said. “There is that feeling of being stuck and unable to move forward.”

Wiley added that because of economic uncertainty, many immigrants have to decide where to spend their resources and may be temporarily unable to move forward with securing their immigration status. She also added that many of her clients have been laid off and that those who were working in small businesses were especially impacted.

Ivan Islas, an immigrant seeking asylum, said he is very stressed by the situation, as he recently lost his job and is struggling to pay his bills.

“Every day is like I’m living in a nightmare,” Islas said. “But it’s real, so it’s very confusing. I really hope this ends soon.”

Nina Narahari is the lead crime and courts reporter. Contact her at [email protected] and follow her on Twitter at @ninanarahari_dc.