The federal government has been referring a greater percentage of asylum cases from Maine to immigration court in recent years, a trend that can keep asylum seekers from reuniting with their families and cause uncertainty while they wait years for their cases to be heard.

Maine asylum applications typically go through the Boston office of U.S. Citizenship and Immigration Services. Data show that in late 2016, the Boston office approved more than 40 percent of asylum applications, similar to the national average. But by the end of 2019, the rate in Boston had plummeted below 8 percent, even though the national average remained closer to 25 percent. Cases that are not approved at that office are referred to the Boston immigration court run by the U.S. Department of Justice, where nearly half were successful last year.

The reason for that shift in the approval rate is unclear. On Thursday, the American Civil Liberties Union of Maine filed a Freedom of Information Act lawsuit in hopes of learning more, after getting no response to a public records request in 2019. Attorneys from two immigration legal aid organizations signed onto the complaint. They are asking the court to force USCIS to hand over case files, written policies and other documents that could explain why the New England office now has one of the lowest approval rates in the nation.

“These patterns of disproportionate denials and referrals have led to lengthy immigration court proceedings that burden the immigration court system, and delays in work permits and family reunification,” the complaint says.

The plaintiff attorneys said they have particularly noticed a decrease in approvals for applicants from central African countries.

“We are worried that the stories we are hearing from asylum seekers and immigration attorneys suggest that these USCIS offices are discriminating against asylum seekers from central African countries,” Emma Bond, legal director at the ACLU of Maine, said. “There is no way of knowing this for sure unless USCIS complies with its obligations under federal law to release documents about its policies, procedures, and demographic information about asylum seekers.”

USCIS does not comment on pending litigation. A spokeswoman did not answer a question about the decrease in approvals and the disparity with the national rate.

HOW THE PROCESS WORKS

Applying for asylum is a legal avenue for foreign citizens who are already in the United States and cannot return to their home countries for fear of persecution. People who are granted asylum can apply for legal permanent residency in the United States after one year and naturalization after five years. The process usually begins with a detailed application and an interview with USCIS. The person will submit numerous documents that could include identification forms, medical records, police reports, expert reports about the conditions in their home countries, news articles and more. USCIS will eventually grant approval, refer the applicant to immigration court or deny in limited cases when the applicant still has legal immigration status. The court will then either grant asylum or order removal.

Nearly 97,000 people across the country submitted affirmative asylum applications in 2019, which means they were not in removal proceedings and submitted those applications through the USCIS office. More than 47,000 people applied defensively, which means they were in removal proceedings and started their process at immigration court. The total number of people who were granted asylum in 2019 was more than 46,500 — a 24 percent increase from 37,500 the year before. More than 27,600 people received that asylum status from their USCIS office. Another 18,800 people gained their asylum status in immigration court. More than 330,000 asylum applications were pending with USCIS at the end of the 2019 federal fiscal year.

The government doesn’t publish data specific to Maine, but Julia Brown, the advocacy and outreach director for the Immigrant Legal Advocacy Project, said that organization estimates there are as many as 6,000 asylum seekers in Maine. ILAP represents between 150 and 200 each year.

The Boston office opened in 2015 and handles all applications from Maine, Massachusetts, New Hampshire and Rhode Island. In 2019, at least 2,800 applications were filed from that region, a fraction of those filed in more populous areas like New York and California. Nearly 18,000 cases were pending at the Boston office at the end of that federal fiscal year.

The two organizations that joined the ACLU of Maine by signing onto the lawsuit are ILAP and the Refugee and Human Rights Clinic at the University of Maine School of Law. Their attorneys and others at private firms described the same increase in referrals to immigration court, as well as worsening delays caused by a backlog and ever-changing policies.

“The referrals are forcing our clients to live in a constant state of limbo that impacts their lives and their ability to start over and live with family,” Anna Welch, who oversees the law school clinic, said. “I look forward to the government producing some records in response to this complaint.”

Immigration attorneys in Maine said they began to notice a sharp drop in approvals from the Boston office two to three years ago. The complaint filed in the U.S. District Court of Maine on Thursday also claims that this trend has particularly impacted clients from central African countries, where attorneys say conditions have not improved or gotten worse, which should bolster their asylum claims. The office does not provide detailed explanations of its decisions, but attorneys said the reasons cited for those referrals were vague and technical. For example, Welch said one client submitted multiple records to prove her identify and her citizenship. The asylum office referred the case to immigration court for failure to prove her identity, but a judge later approved the case with little dispute from the government.

“There was nothing in the record that this should ever have been a case before the immigration court,” Welch said. “We want to do whatever we can to get to the bottom of why this is happening.”

DRAMATIC SHIFT IN APPROVALS

Welch said she had historically gained approval for nearly every application she had submitted on behalf of Maine asylum seekers, and suddenly, nearly all of her cases were getting referred to immigration court. The law school clinic only handled a small number of affirmative asylum cases each year – three to six – but has stopped taking them this year. Instead, the students focus on representing clients who are already at immigration court or who are in removal proceedings.

“It’s so demoralizing and not productive for (the students) to spend 200-plus hours on really strong cases to be denied,” Welch said.

Portland attorney Jenny Beverly said the Boston office has recently granted asylum in some of her cases, and she has worked with officers there who are fair to her clients. But she said she also has been frustrated when her clients are referred at the office level and then approved by the immigration court on the same evidence. Those cases could be worsening the backlog at the court for no reason, attorneys said.

“I trust the members of the immigration bar in Portland, and the cases that we put together are thorough,” Beverly said. “We prep our clients very hard. We do practice interviews.”

Multiple lawyers declined to make asylum clients available for interviews for this story because they did not want to retraumatize those people, jeopardize their cases or put their families at risk.

WAITING FOR YEARS

Attorneys said they have clients who are still waiting for the initial interviews even though they applied for asylum four, five or even six years ago. Those delays are caused in part by an existing backlog and in part by a “last in, first out” policy that changed the order in which USCIS considers cases.

“It seems like our cases in general are frozen,” Portland attorney Leslie Silverstein said.

If those clients are then referred to immigration court, the process will take even longer. Attorney Daniel Keenan takes pro bono asylum clients through ILAP. He described one client who came to the United States in 2013 but didn’t get an interview with USCIS until 2017. She was referred to immigration court and had a hearing there last month. The judge finally granted her asylum seven years after she first arrived.

“That is not unique,” said Keenan, who works for a Portland firm. “That is the reality. The Boston office and the Boston immigration court, it’s very, very overwhelmed.”

Attorney James Wagner, who has a solo practice in Cape Elizabeth, recalled three or four clients who moved from Maine to other states so their asylum cases would go to other offices that process cases more quickly and approve more applicants. That decision is rare, he said, but it speaks to the reputation the Boston office has developed.

“Why should Boston have this entirely different grant rate than Chicago?” Wagner said. “That doesn’t make a lot of sense. Shouldn’t you be treated under the same laws? How can they explain this huge discrepancy between their office and other offices?”

GREATER SUCCESS IN IMMIGRATION COURT

The Boston immigration court is more likely to grant an application for asylum than the regional office. Data compiled by Syracuse University shows that the Boston immigration court granted asylum to nearly half – 572 of 1,287 – of its cases in 2019. The national approval rate for all immigration courts was less that year – 30 percent, or 19,920 out of 67,625.

Even if an asylum seeker is successful at court, attorneys said the delays are stressful and damaging. That person can’t apply to bring family members to the United States until they have asylum status, so they can be separated from their spouses or their young children for years. Their loved ones could still be at risk in their home countries. The threat of eventual deportation causes uncertainty and fear.

“At best, it’s a really major inconvenience,” said Brown, from ILAP. “At worst, it can be really tragic.”

Last year, more than 600 families came to Maine to seek asylum. Many fled the Democratic Republic of Congo, Angola and other central African countries. They described harrowing journeys through Central America and Mexico to cross the southern border of the United States. Brown said most of those asylum seekers have what are called defensive cases, which means they cannot apply to the USCIS office and instead begin their process at immigration court. But the high referral rate in Boston does still impact those families because they will experience the mounting backlog at the court.

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