Erroneous Asylum Office Referrals Delay Refugee Protection, Add to Backlogs

By Cora Wright, Legal Fellow, Refugee Protection and Refugee Representation

People seeking protection in the United States often wait years for a decision on their application for asylum. For many these delays have been exacerbated by the failure of the Asylum Office to recognize as refugees people who clearly qualify for asylum after their asylum interview with an asylum officer from the U.S. Citizenship and Immigration Services. Instead, these cases are referred to immigration court for a hearing.

Needless referrals of asylum cases to immigration court contribute to growing backlogs and subject refugees ultimately granted asylum to years of additional limbo and psychological torment, sometimes separated from family who may be stranded abroad in danger.

The need to address the Asylum Office’s failure to accurately resolve cases has become even more acute given a change to the asylum process published by the Biden administration in March 2022 that would have asylum officers make decisions in cases of people arriving at the border in addition to those who file through the existing affirmative asylum process.

Clearly Erroneous Asylum Office Referrals

Too often the Asylum Office incorrectly refers cases to the immigration court that could and should have been resolved through an Asylum Office interview. Government data analyzed by Syracuse University’s Transactional Records Clearinghouse (TRAC) shows that 68 percent of asylum cases referred from the Asylum Office were subsequently granted protection by an immigration court judge in Fiscal Year (FY) 2021.

For example, a Venezuelan activist couple and their son, who were ultimately granted asylum by an immigration court judge in November 2021 after Human Rights First pro bono attorneys took on their case, waited over three additional years for a decision because the Bethpage Asylum Office wrongly referred their case. Despite having identical applications, the parents were denied by the Asylum Office due to alleged inconsistencies and translation errors, while the son was granted asylum. These translation errors only occurred as the couple had filled out the complex asylum application on their own because they could not afford legal representation or adequate translation services, neither of which are guaranteed by the U.S. government to asylum applicants.

In a recent report on the Boston Asylum Office, some former asylum officers acknowledged an incentive to rush interviews and neglect research and analysis necessary to determine a claim, instead sending cases to the immigration court because it is less work. Many attorneys have observed asylum officers cite minor inconsistencies that are unrelated to the basis for an applicant’s claim for asylum or caused by language-barrier misunderstandings as a reason to refer a case to immigration court.

In one particularly egregious case, a Tibetan activist incorrectly referred by the Bethpage Asylum Office to immigration court suffered an entire year of additional delay before the Asylum Office acknowledged its mistake and granted her asylum in July 2021. Despite submitting clear and voluminous evidence of the persecution she suffered, including imprisonment by Chinese authorities, and evidence that the Chinese government continued to target the woman’s family still in Tibet, the Asylum Office referred the case claiming a “lack of detail” in her asylum application. The decision also incorrectly referred to the woman as a native of India, in direct contradiction to multiple identity documents she submitted. After repeated requests by her Human Rights First legal representatives to reconsider the wrongful referral, inquiries by several members of Congress, and an additional year in limbo, the Asylum Office finally recognized its error, withdrew the case from immigration court, and granted the woman asylum. But this case was the exception.

Erroneous Asylum Office referrals add tens of thousands of asylum seekers to the immigration court backlog, while also wasting resources as immigration judges hear cases that could and should have been granted by USCIS asylum officers. For example, nearly 45,000 asylum applicants from China, Russia, and Venezuela with pending immigration court cases were referred to court after Asylum Office interviews—even though people fleeing repression in these countries overwhelming receive asylum. According to government data analyzed by TRAC, as of November 2021 (the most recent available):

• There were 21,082 pending cases of Venezuelan asylum seekers referred by the Asylum Office to immigration court. The vast majority of Venezuelan asylum seekers, many of whom are fleeing government repression, are recognized as refugees with 73 percent granted asylum or other relief by the immigration courts in FY 2021.
• 19,644 cases of Chinese asylum seekers were pending with the immigration court after referral from the Asylum Office. Many of these cases are also likely to ultimately be granted as Chinese people fleeing state persecution and other egregious harm continue to receive asylum protection at high rates. Eighty-one percent of Chinese asylum seekers were granted asylum or other relief by the immigration courts in FY 2021.
• A smaller but substantial number of Russian asylum seekers (3,093) with pending immigration court cases were referred from the Asylum Office, and many are likely to be granted refugee protection. In FY 2021, for example, 86 percent of Russian asylum seekers received asylum or other protection from immigration court judges.

Contributing to Immigration Court Backlogs, Delays

The Asylum Office’s rate of case referrals to immigration court grew by one-third (from 51 percent in FY 2015 to 68 percent in FY 2019 – the last year with available government data) in the wake of Trump-era policies that tanked asylum grant rates generally. As a result, as of November 2021, nearly 30 percent of the total number of asylum cases currently pending in immigration court were referred from the Asylum Office.

Asylum seekers referred by the Asylum Office face astronomical wait times for a decision in their case. Those with currently pending immigration court cases have been stuck in the court backlog for more than three-and-a-half years (1,356 days) on average, according to government data analyzed by TRAC. But this wait is just part of the extreme delays asylum seekers face considering that many asylum seekers with referred cases also waited months or years before receiving an Asylum Office interview and will be forced to wait months or years longer for an immigration judge to hear their cases.

Separating Families, Multiplying Traumas

These extraordinary delays separate many asylum seekers from their families, desperately waiting to be granted protection so that they can petition to reunite with loved ones who remain stranded in danger.

In another case, the Arlington Asylum Office’s inexplicable referral of an Ethiopian torture survivor to immigration court, for example, separated him for years from his family who remained in danger in Ethiopia, including his wife who was arrested and interrogated by Ethiopian police due to his political activism. The Asylum Office’s referral added years to the five-year delay the man endured before ultimately being granted asylum by an immigration judge in December 2021 with the assistance of pro bono attorneys through Human Rights First – in a case that the government’s attorney recognized was so strong that the Department of Homeland Security waived their right to appeal the judge’s decision.

An asylum seeker’s wife was murdered in their home country as he waited for an immigration court hearing after being referred there by the Boston Asylum Office. One the man’s children also died under mysterious circumstances after his remaining family members fled to a neighboring country following his wife’s killing. The Asylum Office’s failure to resolve the asylum seeker’s case, which remains pending before the immigration court, leaves him unable to petition for his surviving children to join him in the United States or to even to visit them abroad.

Asylum seekers needlessly referred to immigration court are subjected to traumatizing, adversarial court proceedings. Forced to re-tell the details of the persecution they suffered after having already done so during their Asylum Office interview, asylum seekers often report that questioning by the immigration judges and government attorneys in court compound their stress and anxiety.

Recommendations

As Human Rights First has repeatedly recommended, the Asylum Office should:

• address its failure to resolve cases that can and should be granted asylum;
• curb needless referrals that lead to lengthy waits for immigration court by ensuring that asylum officers receive appropriate training and supervision;
• remedy the apparent policy of punting to immigration court certain classes of asylum claims, such as imputed political opinion claims or cases dealing with bars to asylum, including the one-year filing deadline; and
• address the long-revealed disparities in referral rates by office.