Trump Administration Upends the Lives of Asylum-Seekers in So-Called Anti-Fraud Crackdown

Pap Koudjo is a satirical journalist from Togo, who founded and ran his own magazine that was critical of the oppressive 50-year rule of the government in the West African nation. He was threatened several times for his work and was once attacked in the street by a member of the military. He fled to the United States and applied for asylum two years ago, hoping to eventually bring his family to safety here. As he waits for an interview in his asylum case, he tries to talk to his wife and 9-year-old daughter every day, relying on WhatsApp. But the internet connection in his home country is poor, he said, so they often have to wait until odd hours of the night.

“It’s a big sacrifice for all of us,” Koudjo said. “Sometimes [my wife] has to stay awake overnight to talk on the phone.”

Koudjo, who was inching closer to an interview at the New York asylum office, recently learned that he may be separated from his family for several more years, due to an abrupt decision from the Trump administration that upends the asylum system and affects more than 300,000 people living in the United States.

U.S. Citizen and Immigration Services announced last month that, as of January 29, it is scheduling more recent asylum applications ahead of older ones that have been lagging in a yearslong backlog. The agency switched to a “last in, first out” approach after three years of prioritizing the interviews of older applicants. Now, asylum-seekers like Koudjo will be bumped back to the end of the line.

The impact of the decision is widespread, affecting not only the hundreds of thousands of backlogged asylum-seekers, but also the family members many of them leave behind — often in dangerous conditions.

“I have clients who have not been able to see their children grow up outside of a computer screen,” said Caitlin Steinke, an asylum lawyer based in New York City. “I cannot give them a sense of how many more years of their children’s lives they’re going to miss out on, and that makes me feel so helpless.”

Reassuring her clients that they’ve almost made it to their asylum interviews was a way to “keep the hope alive,” Steinke said. “That has been taken away.”

The reason for the change, according to USCIS, is to deter people from making frivolous or fraudulent asylum claims in order to obtain temporary work permits. Asylum-seekers whose applications have been pending for 150 days or more can apply for a work permit while they wait, and the Trump administration believes that people are exploiting what it calls a loophole. If they interview recent asylum-seekers first, the logic goes, they can quickly weed out and deport people who don’t have a real claim.

“Giving priority to recent filings allows USCIS to promptly place such individuals into removal proceedings, which reduces the incentive to file for asylum solely to obtain employment authorization,” USCIS stated in announcing the new policy.

The change comes as Attorney General Jeff Sessions has railed against fraud in the asylum system. Immigration attorneys and rights groups counter that there is no evidence of widespread abuse and see the change as one more front in the Trump administration’s efforts to scale back the country’s legal immigration and refugee policies.

“I think if they had their way, they would get rid of asylum,” Steinke said.

A spokesperson for USCIS emphasized that the intent of the change was only to deter applications made for the sole purpose of obtaining work authorization, and that the agency was confident that it would help them to process legitimate applications faster.

“By going after the very earliest applicants first, trying to avoid putting people into a backlog situation, we’ll be better able to start chipping away at the backlog,” the spokesperson said.

Koudjo came to the United States at the end of 2015 and applied for asylum in April 2016. The government of Togo, he told The Intercept, “focused on me as someone who talks too much and they tried to threaten me. They did it two or three times. When I feel that my life was not safe, I didn’t take any risk. I just flee the country.”

As of December, the New York asylum office, where Koudjo filed his case, had 48,615 pending applications and was scheduling interviews for folks who applied from April to September 2015. Koudjo’s case was slowly making its way through the queue, but now, his time spent in limbo and separated from his family has been extended indefinitely.

The wait is agonizing. Koudjo says his family is in danger back home (if he’s granted asylum, he can immediately petition to have his family brought to the United States.)

Since he’s been in the United States, his mother passed away and he was unable to attend her funeral. Asylum applicants can request to leave the U.S., but even with permission, returning to their home country where they fear persecution could jeopardize their case and re-entry to the U.S. is not guaranteed.

Compounding the confusion over how long Koudjo will have to wait for an interview, the government has taken active measures to obfuscate the timeline. In coordination with the recent announcement, USCIS removed an online bulletin that detailed which applicants it was scheduling asylum interviews for, based on date of application. It was a helpful, albeit imperfect, indicator that asylum applicants could use to estimate their own wait times.

A USCIS spokesperson confirmed that it has no plans to reinstate the bulletin, which it now deems “irrelevant.” “Interviews are no longer being scheduled so long after the application has taken place,” the spokesperson said, not accounting for the asylum-seekers in the backlog who applied years ago.

The spokesperson added that asylum-seekers in the backlog can request an expedited interview, but was not able to say how they would decide what kinds of cases they would consider nor how many expedited requests they would grant.

The sudden change to scheduling interviews also affects recent applicants — people who, based on the backlog, thought they had years to prepare for their asylum interviews, and now realize they may need to gather the evidence to support their claims in just a matter of weeks.

Abdoulaye is a political activist from Guinea who only recently applied for asylum. Through a translator, he told The Intercept that he was arrested several times and severely beaten by the police. The last time he was arrested, according to Abdoulaye, they told him they would kill him if they found him at another political demonstration. After quickly hiding his family, he fled the country in search of sanctuary in the United States.

Under the backlog, many people like Abdoulaye, whose name The Intercept has changed because he fears retribution, were advised by lawyers to submit their applications first and use the time spent waiting for their interviews to collect supporting evidence and make money to pay for a lawyer. (Having a lawyer vastly improves the chances of being granted asylum.)

Gathering documents is no small feat; it usually takes months, Steinke explained. To build a strong case, asylum applicants are advised to provide as many documents as possible, such as birth certificates, passports, and voter registration to prove their identity; photographs, medical records, and police reports to corroborate their claims; and NGO reports, news articles, and other objective sources that can prove the threatening conditions in the country. All of these documents must be translated into English. In some cases, the governments that the applicants are fleeing surveil correspondence, forcing applicants to rely on a human courier to physically transport documents out of the country.

“A lot of people are fleeing persecution at the drop of a hat, and they do not have the time to collect all of their original documents and get evidence of their persecution,” Steinke explained.

“The asylum office will not take you at your word and if you don’t have documents … [it] can be very unforgiving,” she said.

Abdoulaye was lucky — he found his way to RIF Asylum Support, a New York-based nonprofit that supports asylum-seekers with legal guidance and other services, where he met a lawyer who offered to help him submit his application. (Disclosure: My partner works as a program coordinator at RIF.)

But now that his interview could be scheduled at any moment, he won’t have time to save up money for legal representation. With the help of a volunteer lawyer from RIF, he believes he has the supporting documents he needs, but asylum-seekers without legal guidance may not know what evidence could make or break their cases.

“When you’re all of a sudden being scheduled this quickly,” Steinke said, “it limits your opportunities to gather documents that could end up being the smoking gun in your case.”

USCIS has also defended the scheduling switch by arguing that it is simply reverting to the system that was in place just a few years ago. “We are returning to a proven process that we used from 1995 to 2014 and was proven effective at reducing an even larger backlog at that time,” the USCIS spokesperson said.

In December 2014, the Obama administration began prioritizing applications in the order they were received as a response to “increasing humanitarian caseloads.” At the same time, the administration added 175 asylum officers, widely believed to be one of the most effective ways to address the backlog.

The USCIS said that since January, it has added 100 temporary staffers, pulled from other assignments, who work in rotating shifts. According to the agency, this represents a 20 percent increase, from roughly 500 officers to about 600, though not all working at the same time.

The increase in asylum claims in recent years has not abated. “This backlog has grown by more than 1750 percent over the last five years,” according to according to USCIS, “and the rate of new asylum applications has more than tripled.”

In December 2017, the USCIS received more than 10,300 new applications. In the same month, they were only able to conduct 4,750 interviews — less than half the number of new applicants. (To be fair, the number also reflects roughly 800 no-shows and about 2,200 interviews that were rescheduled by applicants.) Until the USCIS flips those numbers, the backlog will only continue to grow, and those waiting will never get out.

The USCIS claims that changing the process to limit the work-permit incentive will help the backlog. But that idea rests on the assumption that there are large numbers of fraudulent cases – or, as Sessions put it in October, that the system is “overloaded with fake claims.” Steinke and many other immigration lawyers and experts dispute that.

“There is no evidence supporting the claim that any significant proportion of asylum-seekers presents false claims or otherwise attempts to defraud the system,” Olga Byrne, a senior researcher and advocate at Human Rights First, said in response to the new USCIS changes.

“I think what’s going to happen is that definition of a ‘fraudulent claim’ is going to be expanded into territory where it should not be,” Steinke said. The term “is being erroneously applied to situations where what they’re really talking about is a not-very-strong asylum claim and that’s not fair.”

Over-applying the term “fraud” is just one alleged assault on the asylum system. A recent report from Human Rights First found that “the Trump administration is expanding prosecutions for unauthorized border crossing by targeting refugees legally seeking the protection of the United States.”

“As a result,” the report found, “asylum seekers are subjected to a deeply dehumanizing system that punishes them for seeking protection and threatens to return them to countries where they will face persecution.” There have also been reports that U.S. border officials have lied to would-be asylum seekers and turned them away.

It’s true that there are many people fleeing violence, corruption, and state collapse, mostly from Central America, and not all of them fit the strict categorical requirements for asylum status. Their stories sound very similar, Steinke said, and she believes they are being lumped in with actual fraudulent claims. (USCIS was not able to provide statistics on the number of fraudulent applications it has identified.)

It’s not clear that the recent changes will actually deter applicants who file asylum claims for the sole purpose of acquiring work permits, as there is a lengthy appeals process that is also extremely backlogged. If an applicant is not approved at the asylum office, they are referred to Immigration Court, which usually takes several more years. During this time, asylum seekers can still extend or apply for a work permit.

The USCIS spokesperson did not address this potential loophole, instead referring The Intercept to the Department of Justice, which did not respond to a request for comment.

Without a doubt, the changes mean that individuals with strong asylum cases will get shaken out of the system — either through fear, procedural mismanagement, or simply being worn down and giving up. These people will most likely be sent back to a country where they face a high risk of being tortured or killed.

A senior immigration official, speaking on condition of anonymity because they are not permitted to speak to the press, agreed with the USCIS’ public statements that “people will be less likely to apply for asylum in the first place (which will help cut down on fraud and frivolous claims).” However, the official also fears that “people languishing in the ‘pipeline’ will give up.”

Koudjo, the asylum seeker from Togo, doesn’t think he can make it another two years in the backlog.

“I’m still hoping that things are going to change in my country soon,” he said. “If things change, I will go back.”

Anti-government demonstrations have rocked Togo in recent months, as protestors demand a constitutional reform that includes presidential term limits. The future of the country and outspoken critics like Koudjo remains uncertain. Just last month, a friend of his, also a journalist, was killed on a motorcycle under suspicious circumstances. Koudjo believes he was murdered.

“[Asylum seekers] came here because they said the United States is the freedom country,” Koudjo said. “That gives you hope that maybe when you come here, they will take care of you and they give you hope to build a new life.”

That’s not exactly the country that he found. “When you come, they are doing everything to throw you away,” he said. “They treat you like garbage, they don’t care about you. That’s hard.”

Nonetheless, while he waits, Koudjo has tried to make a life for himself, saving up money by working in construction and as a salesperson at a men’s clothing store. He also started his own business selling hats.

Top photo: RIF Asylum Support meeting on Feb. 5, 2018, at Fordham University, New York.