New Research by AILA Reveals Anatomy of an Asylum Case + Online Event This Friday
Even the best attorneys require 50-75 hours over several months to complete an asylum case. The Biden administration's attempts to speed up asylum cases is not taking this fact into consideration.
New in-depth research by the American Immigration Lawyers Association (AILA) provides original insight into the key components of asylum cases and, more importantly, how much time a competent attorney needs to complete an asylum case.
According to AILA’s report, an experienced immigration attorney requires around 50 to 75 hours to properly prepare an asylum case. That’s a helpfully precise number since, to my knowledge, no one has tried to quantify this specific type of legal labor before. There are a few key qualifications to this estimate that are easy to blink and miss, so let me try to spell them out.
First, “an experienced attorney.” There are far fewer experienced immigration attorneys who specialize in asylum than there are immigration attorneys, law students in a clinic, and attorneys writ large who take the odd pro bono asylum case. The asylum system wouldn’t work without the additional labor of those who are not highly-focused specialists, and yet it is unavoidable that those attorneys will need even more time.
Measuring attorney competence is a notoriously fraught endeavor, but the question of competence is unavoidable. During my own research, I saw many immigration attorneys whose work was complicated by the fact that a client’s previous attorney had made mistakes that the now-current attorney must undo—at the cost of precious time and resources.
Second, as the report makes clear, those “50 to 75 hours” cannot be devoted in a single bustling workweek or two. They must be spread out over a period of a few months because of the various interdependencies that are essential to legal cases.
An attorney doesn’t simply sit down and fill out some forms. We’re talking about requesting documentation from clients; possibly arranging expert testimony; conducting background research; requesting, receiving, and translating documents; and much more. And let’s not forget, the volatile policy landscape means that attorneys also have to keep up with whatever new precedent comes out of the BIA or federal courts, as well as whatever new policy the current administration has announced. All of that takes time: a few hours of work, waiting, a few hours of work, waiting, etc.
Third, there are no “typical” asylum cases. Appendix I of the report evaluates various contingencies that add time to cases, such as the client’s level of trauma, whether the client is detained, whether the immigration court suddenly reschedules the client’s hearing—and so on—all of which add to the time required for a case. Appendix I is my favorite part of the report because it’s both practical and yet extremely clever in how the data is represented. I’m going to post an excerpt here to hopefully inspire you to scroll down and have a look for yourself.
This research comes at a crucial time. With more than 2.3 million cases pending in the immigration courts and large numbers of new asylum seekers entering the country, the Biden administration is trying to find ways to move cases faster through the system. One program is called the Dedicated Docket, which seeks to move recently arrived families to the front of the line in court so they get a quick decision. However, as research by TRAC has shown, the acceleration of these cases led to low representation rates and high rates of deportation orders.
Another Biden administration program seeks to take new asylum cases out of the courts altogether and move them to USCIS, which typically hears what are called affirmative asylum cases already. In doing so, the Biden administration aimed to have these cases completed in mere weeks. Big, if true—as they say.
I wrote at the time of the announcement that as a procedural matter, putting asylum officers in charge of new asylum cases was probably much better than forcing everyone to go into court. But I added a concern about the speed of cases, which has indeed turned out to be a major problem.
In fact, just last Friday in this newsletter, I talked about the role that case acceleration plays in limiting the number of people who are able to apply for asylum and therefore limiting who actually receives asylum. What’s worse, recent reporting show that immigrants are simply not getting the attorneys they need to file robust asylum applications. See my previous section titled Immigrants Aren’t Getting the Attorneys Biden Promised. (Note: that link will take you directly to that section in last Friday’s newsletter so you don’t have to scroll for it.)
Edit: After I published this post I found my previous post full of pictures that show the sheer size of asylum applications. I’m adding it below as an important reference.
Asylum Applications and the Materiality of Law
One of the principles that I attempt to communicate to my students in Geographies of Migration and Mobility is the principle that law, often represented as an abstract and theoretical exercise above everyday life, has an everyday materiality of its own, and that this materiality can tell us something about how law functions as a social practice.
In the context of these overarching concerns about the speed of asylum cases, therefore, AILA’s report offers one of the most needed empirical data points that, to my knowledge, we really have not ever had access to: an estimate of the time needed to complete asylum cases from the perspective of attorneys, along with the time costs associated with various complicating factors. Well done, AILA, and well done to Amy Grenier specifically who I know has put a lot of effort into this invaluable research project.
You can read a summary of the report and the full report online at the following link.
AILA is also hosting a public discussion of the report this Friday afternoon at 1:30 pm Eastern with several experts in the field.
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Excellent and necessary work.
Once again, thank you for this vital information!