Although free, Joseph sometimes feels in a prison.
For five years he went into exile in the United States and began a process of political asylum that does not advance or allow him to heal. Her fears and traumas, she says, are key to winning her case.
"The day tomorrow you have an appointment with migration you have to have those things so live. It's like writing in a notebook everything that hurt you and all the things you don't want to remember," says the 26-year-old Nicaraguan who asked not to use his real name for safety.
His is one of 778,084 affirmative asylum claims pending an interview with U.S. Citizenship and Immigration Services (USCIS), according to 2022 data from Syracuse University's TRAC research center in New York.
"It's worrying, time goes by and you see that you haven't done anything, that you're not moving forward," José told Noticias Telemundo from Miami, Florida. "They have your hands tied."
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In 2018, Jose applied without a lawyer and knows that the day he gets an appointment he will need to get one, but delays in the immigration system don't just overwhelm him.
Lawyers with private and pro bono practices are also overloaded with ineffective cases for years, a problem that inhibits them from taking on new clients and hurts those they already have, experts explained to Noticias Telemundo, who say that the immigration system has not been able to adapt to the current migratory flow.
Migrants get off a bus in El Paso, Texas, on May 16, 2023.Bloomberg/Bloomberg via Getty Images
"It's hard for us to expand our services and take on more clients because we can't close any of our cases," said Rachel Kafele, program director at Oasis Legal Services, a nonprofit that provides free legal advice and accompaniment to LGBTIQ immigrants in the state of California and parts of Nevada. Oregon and Washington.
Oasis has a three-month waiting list for new cases because more than 800 of its clients still do not receive an appointment with USCIS. "We have clients who applied for asylum in 2014 and are still waiting for their interview."
But how did we get here?
More than 1 million asylum applications stuck in an "inefficient" system
"The U.S. (immigration) system was designed in 1965 and has not been reformed since," Raquel Aldana, a lawyer and law professor at the University of California, Davis, told Noticias Telemundo.
"We talk about asylum and how the system is overwhelmed, but every year we barely grant 20,000 to 25,000 asylum applications to people around the world. That's nothing," says Aldana. "The problem may not be the migratory flow. It is that the law itself does not respond to the reality that is lived."
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"And everything is going to continue to get worse as long as there is no immigration reform, one that really changes the whole system," Tahimí Rengifo, an immigration lawyer who practices in Miami, told Noticias Telemundo. "(The system) is designed for the needs of that time, not for those of the present time and current situations."
The lag in figures
- About 1.6 million asylum seekers are waiting for a hearing to plead their cases, according to TRAC data.
- Of these, 787,882 will do so before a Department of Justice immigration judge; and another 778,084 before USCIS officials. Many immigrants have not yet been able to start their application.
- Although in the United States there are people from at least 219 different countries and 418 languages who have requested asylum, 59%, almost six out of ten cases in courts, are from five countries: Guatemala (111,184); Honduras (101,195); El Salvador (97,260); Mexico (82,837) and Venezuela.
These figures "represent the highest total number of pending asylum applications on record," TRAC stresses. Historically, the number of cases "has exceeded the ability of government agencies to process petitions quickly and fairly," the investigative unit said.
For Amy Grenier, Policy and Practice Advisor at the American Immigration Lawyers Association (AILA), it is a combination of factors, such as "bureaucratic inefficiencies", policies of the Administration of former President Donald Trump – including "incentivizing unnecessary denials and freezing hiring" of personnel – and delays carried over from the pandemic, when offices and courts closed for several months.
"Immigration agencies are really bad at communicating and coordinating," Grenier says. Procedures that should be simple, he says, such as a change of address are cumbersome because they have to be done separately in each instance.
The path to citizenship for an asylum seeker can be delayed indefinitely as long as people do not get their first hearing. Robert Nickelsberg/Getty Images
An asylum can be defensive or affirmative, depending on how the application was filed. The "defensives" arise in response to deportation proceedings before an Immigration Court after issuing a Notice to Appear or NTA, which is usually given to those who turn themselves in at the southern border, for example, establishing a date and place to appear before a judge.
Those immigrants who arrive regularly in the country and begin their process voluntarily before USCIS have "affirmative" cases and the decision rests with an asylum officer who interviews them about the fear and persecution suffered in their country of origin and why they cannot return. If the application is not approved, it is referred to an immigration judge, adding to the gridlock in the courts.
"Who wants to live with this uncertainty for years?"
The number of applicants also outpaces that of immigration attorneys, who have become more selective with their clients because of the years it takes them to resolve an application. This applies to private practices and pro bono services alike.
Oasis Legal Services only represents affirmative cases because they used to be faster, Kafele says, but for nearly a year they haven't even scheduled an interview at the Asylum Office in San Francisco, which serves several counties in California and Nevada. Before, "we got between five and ten interviews a month, between 60 and 100 interviews a year. And now it's practically zero."
The client feels that the lawyer can't solve anything, he can't rush the process."
Tahimí Rengifo Immigration Lawyer
Each case also involves other procedures, such as the renewal of work permits and changes of address, which extend indefinitely. "It limits us in the economic sense," says Rengifo, a partner in a private practice in Miami. "What you were charged is for a representation that was supposed to take a few months," but that lasts for years, he says.
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It also affects them in the service to their clients and the perception they have about their performance: "The client feels like the lawyer can't solve anything, he can't rush the process."
The average waiting time for a case before an immigration court is 1,572 days, or 4.3 years, from when the process reaches the court until it receives a hearing, details TRAC.
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"I think it's hard for immigration lawyers to have to prepare a case multiple times," Grenier said. First to file the asylum application, then for the hearing — which is usually canceled and rescheduled at the last minute — and finally when a new date is assigned. "It's also hard for the asylum seeker: who wants to live with this uncertainty for years?" tag.
Grenier has heard two reasons why lawyers are declining to take cases: "Because the deadline is too fast, as in expedited removal, and because it is too slow in immigration courts."
"The last one to arrive, the first to leave"
The measure known as Last in, First Out applied by the Trump Administration and still in place, establishes that those who have just entered the country will have priority to be heard, something that does not benefit newcomers or those who have been waiting for years.
Appointments for a hearing are granted so quickly that immigrants have very little time to get evidence or an attorney to represent them, Rengifo says. "They don't have enough time and the lawyer doesn't have any control" over when an appointment is scheduled, he says.
Lorena Duarte is also an immigration attorney in Miami and says that since she founded her firm almost three years ago "all my cases have been of people who have just arrived and those cases have moved faster. I have certain cases that want to be adjudicated as early as a year or two years."
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She has also attended consultations of people who arrived in the country with a visa and "have been waiting for five, six, seven years (an appointment) and the only solution is to sue the Government in federal court, but many people do not want to do it," she says, referring to the Writ of Mandamus, an extraordinary resource that, according to the Attorney General of the United States, "must be used in exceptional circumstances of peculiar emergency or public importance" and serves to correct faults or failures of government officials.
Duarte and Rengifo agree that this is a way out for solid asylum cases, with plenty of evidence. "They're going to give you the interview, but under what circumstances? You are already the person who sued them federally, it is a double-edged sword, "warns Rengifo.
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José, the asylum seeker from Nicaragua, says he has seen friends, family and acquaintances arrive after him and get appointments, interviews, residencies, while he remains stuck in a migratory limbo from which he does not know when he will leave.
"I am happy for them because they did not have to suffer what one suffers, the uncertainty, but you do have to tell the truth: it is an injustice, but not an injustice that people are to blame, it is injustice on the part of the system," he says.
A "prisoner" in "freedom"
"I came, it's supposed, fleeing insecurity and to try to live a life in peace, but I'm not really living a life in peace," Jose says. Although he has a work permit and a social security number, he lives with uncertainty. "You're not being happy because you don't have the rights. You are imprisoned in a country: you have freedom, but you cannot leave it." "It doesn't really help you heal."
His status as an "asylum seeker", which is not the same as asylee, also limits him to access public loans to continue studying, for example.
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Kafele, program director at Oasis Legal Services, says, "Limbo is very painful and causes a lot of anxiety." His clients, he laments, "feel like they can't move on with their lives because they're stuck waiting, without an answer, without a decision."
You are imprisoned in a country: you have freedom, but you cannot leave it."
Jose asylum seeker from Nicaragua
For Grenier, AILA's Policy and Practice Advisor, trauma "is inherent in asylum and the anxiety and uncertainty of the process" can aggravate it.
As time goes on, another possibility lurks: that circumstances in the applicant's home country change and 'what is a judge going to tell you?' The evil you experienced, what you experienced, has already changed, so you can go back to your country now' and what happens: you lost years trying to build your life in the United States, when in reality they are going to make you return, "says Rengifo.
"More Immigration Lawyers Needed"
Many immigrants complete their paperwork without the advice of an attorney. One in ten asylum seekers lacked representation in cases resolved in fiscal year 2022 and, among pending asylum cases, "one in five (21%) is registered as unrepresented," according to TRAC.
"There is definitely a need for more qualified immigration attorneys and volunteer attorneys," Grenier says. Although, even getting them, it is possible that because of "the way the current system is configured" it will be very difficult for immigrants to access them.
In asylum cases, there is no equivalent of a state-paid lawyer, as is the case in criminal cases, Grenier points out.
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"It is a complete ignorance of the consequences of immigration" on the part of the government, Kafele points out. "For someone seeking asylum and facing death if they return to their country, the stakes are just as high."
Immigration is an "unfortunately very complex" legal field, with ever-changing laws and policies, Duarte warns. Missing an appointment or failing to provide evidence can result in a deportation order, for example.
"The backlog will continue to grow"
While the government and officials of both parties insist on allocating public funds for the management of cases at the border, the experts consulted by Noticias Telemundo point out that there are other areas in which the money can be as or more effective.
For Aldana, there is a design problem in the system: "We give a lot of money, billions of dollars to detention centers, to the privatization of detention and service systems we also leave them in scarcity."
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Unlocking the system requires comprehensive solutions and "looking at the immigration system as a whole," says AILA's Grenier. "It's time to stop framing the southern border as an emergency. If it's always an emergency, it's never an emergency," he stresses.
If there are delays at the State Department or the Labor Department, he explains, that could impact the flow at the southern border. The same goes for the refugee or temporary worker program.
In addition to hiring more asylum officers, "uniform policies, centralized systems, and information sharing among immigration agencies" should be established, he says.
Rengifo acknowledges that there are measures that are already being successfully implemented to alleviate the backlog, but they will fall short until they approve an immigration reform that attacks the deficiencies at their roots.
Hearings are scheduled so quickly for newly arrived immigrants that they have very little time to get evidence or a lawyer to represent them, experts say. New York Daily News / NY Daily News via Getty Images
If all asylum officers stay at the border and no more appointments are assigned at offices within the states, "the backlog is going to continue to grow," Kafele warns. "And I think it will be 10 or 20 years before people get a decision on their asylum case."
José, for his part, says he tries not to think about the injustices of the system. His father died in 2020 from complications related to COVID-19 in Nicaragua and he was unable to say goodbye. Nor support his family in the Central American country that is experiencing a deep economic, political and human rights crisis.
He knows that he is alone, but also that he cannot return to his country: "Yes, there is that insecurity, that sadness, that melancholy, but at the end of the day you say 'this is the best option I had for my sake, for the good of my family' and it is the only thing you have left as a reward."