Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.
The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck -- in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.
The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.
The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.
But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.
When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.
Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.
But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”
Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.
“We have a system that's not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”
The asylum system was created in the wake of the U.S. and other countries’ refusal to let in Jewish refugees during the Holocaust.
World War II sparked our current asylum and refugee policy. During the war, safe countries like the United States largely shut their doors to Jewish refugees, citing national security concerns. In one notorious example, the U.S. turned away a boat of nearly 1,000 Jews escaping Nazi Germany in 1939. More than a quarter of the ship’s refugees eventually were killed in Europe during the Holocaust.
After the war, the international community attempted to create a more orderly system for aiding people in danger. This resulted in the 1951 U.N. Refugee Convention and its 1967 protocol, which defined a refugee as a person fleeing persecution based on “race, religion, nationality, membership of a particular social group, or political opinion.” The convention included an article prohibiting countries from penalizing refugees for entering a foreign country illegally as long as “they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” It also obligated signatories not to return any asylum-seekers to countries where their lives or freedom would be threatened.
The U.S. signed on, but initially dealt with refugee crises on a case-by-case basis, usually tied to foreign policy objectives. Early major refugee programs addressed people fleeing Communist countries, including the resettlement of Hungarian refugees after the 1956 revolution, the Vietnamese resettlement program after the Vietnam War, and refugee boat lifts after the Cuban revolution.
The U.S.’ current system to accept refugees wasn’t created until decades later.
It wasn’t until President Jimmy Carter’s last year in office that the U.S. passed a formal law, the 1980 Refugee Act, to provide a permanent system for admitting refugees. This law was a product of the universal human rights activist movement of the 1960s and 1970s, a moment when nationalism was at an ebb. “It set up a mechanism where the United States can accept refugees from all over the world. In the decades prior, those admissions were much more targeted and limited,” said Carl Bon Tempo, a historian at SUNY Albany and the author of Americans at the Gate: The United States and Refugees during the Cold War.
The law created formal programs: for refugee resettlement from abroad, and for asylum-seekers who ask for protection once already inside the U.S.
On the simplest level, the law had two components: one that resettles refugees vetted abroad by the United Nations, and another to process asylum-seekers fleeing immediate danger who arrive in America first and then apply for protection.
If a person seeking protection makes it into the interior of the U.S. — often after first entering on a legal visa — they can file what is called an “affirmative” asylum application within one year. This means they’ll have an interview with a U.S. Citizenship and Immigration Services asylum officer in a non-adversarial setting. Less than a third of applicants are granted asylum in the interview stage. The rest are referred to immigration court.
Play the Game
Experience affirmative asylum applications in the story of an asylum-seeker from Bangladesh.
If an asylum-seeker presents a claim at the border or is caught and ordered deported but expresses a “credible fear” of persecution in their home country, they can only file a “defensive” application — and then are sent straight to the immigration court system. Applicants have about a 50 percent chance of receiving asylum in the courts, though it varies widely by judge.
Play the Game
Experience defensive asylum applications in the story of an asylum-seekers from Congo who asked for help at a port of entry.
When Congress passed the 1980 Refugee Act, they didn’t anticipate how often it would be used.
“When asylum was first written into the Refugee Act, it was not viewed as the path that maybe tens of thousands of people, or even thousands of people, might claim annually as their way to get in,” said Bon Tempo. “It was seen as a legal pathway for someone to gain admission, but that very few will pursue.”
That’s not what happened. The introduction of the act coincided with civil wars in El Salvador, Guatemala and Nicaragua that triggered a large-scale migration. Asylum applications quickly rose. Over the years, the expansion of affordable travel has also meant that asylum-seekers from all over the world can more easily reach the U.S. on visas to find immediate safety and then apply for protection. The number of asylum applications has fluctuated over the years, but in 2014, it began to rise sharply, this time mostly from Central Americans trying to escape rampant gang violence their governments have been unable to control. Most of them arrived at the border and filed defensive asylum applications.
“Part of the problem with modern asylum procedure is you have so many people applying, many more than the system can actually handle,” Bon Tempo said.
Though the law hasn’t changed, the Trump administration has been reshaping the asylum system in other ways.
The Trump administration has promised to cut both legal and illegal immigration. A big piece of this effort is reframing the asylum system as a national security issue instead of a humanitarian program and characterizing asylum-seekers at the border as illegal entrants.
“Congress has so far refused to pass draconian legislation the administration wants that would cut off access to U.S. refugee protection,” said Eleanor Acer, the director of the refugee protection program at Human Rights First. “The administration is trying to do everything it can… to limit access to asylum and to rush people through the process, giving the appearance of due process while at the same time undercutting it.”
When asked about the criticism, a spokesperson from the Department of Justice said the reforms are “common sense” and “designed to increase efficiency and productivity in an immigration court system that has languished after years of neglect and failed leadership, and all are made while ensuring that due process is not compromised.”
Much of the administration’s efforts have been aimed at the asylum case backlog.
The recent spike in claims from Central Americans at the U.S.-Mexico border has contributed to an unprecedented backlog of more than 680,000 cases in immigration courts, more than double the number in 2013 (these include both defensive asylum cases and other types of immigration cases). There are also 300,000 affirmative cases waiting to be processed by USCIS, an increase of 1,750 percent over the last five years. Asylum-seekers often wait three to four years to have their cases heard, and the process can take even longer if they are initially denied and then appeal their cases. In 2016, the most current year of complete data available, 20,455 applicants were granted asylum and 11,643 were denied. In the same year, more than 180,000 new asylum applications were filed.
Some, like Sessions, worry that a backlog invites perverse incentives. Once asylum-seekers file an application, some are eligible to apply for a work permit if they have not received a decision after 180 days. (It usually takes 240 days to actually get a work permit.) If their cases take years to be reviewed, that means they may spend all that time working and establishing themselves in the U.S., and eventually can apply for another form of legal residency.
Though Sessions argues there is “rampant fraud” in the asylum system, there is no clear evidence to quantify how widespread the problem is.
Experts say fraud does not define the system.
“We do a really good job of handling asylum fraud,” said a current USCIS asylum officer, speaking on condition of anonymity. “Even if someone manages to get a benefit in the short term, we always come back and get them. We do asylum terminations if we find evidence.” Examples include identifying rehearsed stories that are repeated over and over, or catching misrepresentations, like African men who claim persecution because they are gay, but later file for a wife’s residency papers.
Many asylum-seekers with legal representation also undergo physical and psychological evaluations to help support their case, and sometimes country experts are called to assess an asylum-seeker’s story. The Executive Office of Immigration Review, which oversees immigration courts, also has a Law Library and Immigration Research Center to keep up-to-date on human rights conditions in different countries.
Play the Game
Experience how asylum-seekers with legal represenation may be vetted in the story of an ethnically Tibetan man from Nepal.
Most immigration experts say outright fraud is rare. Even though many asylum cases are rejected, they are usually filed by people in good faith with legitimate fears, but who may not fit a narrow interpretation of asylum law.
Other false claims, as Javad Khazeli, a former ICE prosecutor from 2003 to 2010 explained, can be attributed to immigration scams. Over the years, he saw cases of immigrants duped by what’s known as a “notario” — people who falsely market themselves as qualified to give legal advice. These non-attorneys sometimes promise undocumented immigrants they can help them obtain a work permit, and instead file an asylum claim on their behalf. The person gets a work permit while they’re waiting, and then are surprised and confused when their case comes up, Khazeli, now an immigration lawyer, said.
But he questioned trying to paint the asylum system as rife with false claims. “One of the driving forces of the small percentage of fraudulent cases are notarios, sure,” he said. “How do you put notarios out of business? You make sure people have access to good legal services.”
Advocates say there’s a problem with the system that needs to be addressed: The government should provide asylum-seekers with lawyers, since the cases often involve life or death stakes.
This was a solution favored by many experts ProPublica spoke with. While asylum-seekers have the right to find legal representation, they are not entitled to a free lawyer. Applicants have legal counsel in only 37 percent of cases that go through immigration courts. Asylum-seekers held in detention in remote locations often have particular difficulty finding representation. This can make a big difference: 90 percent of applicants without representation had their cases denied in 2016, versus nearly 50 percent of applicants with lawyers.
“These are death penalty cases — you fear you'll be killed if you are sent back and you don't even have an attorney,” said Karen Musalo, the director of the Center for Gender & Refugee Studies at University of California Hastings. Even children are not guaranteed legal representation. Yet, studies have shown that children who have access to legal counsel are far more likely to show up for their hearing than those who don’t.
Play the Game
Experience the struggle of working with a bad lawyer in the story an of asylum-seekers from El Salvador.
Though it’s difficult to estimate how much it would cost the federal government to provide legal counsel to every applicant in immigration court, a few studies have tried to put a number on it: A 2014 economic analysis estimated that such a program would largely be offset by reduced detention costs, and cost $4 million extra a year. A study from 2016 that focused on California estimated each immigration case would cost $5,000 in legal fees.
Instead, the Justice Department seems to have made it even more difficult for asylum-seekers to access legal counsel.
This month, Sessions announced the department would temporarily halt a know-your-rights and pro-bono legal program and telephone help-line that serves nearly 50,000 detained immigrants per year, in order to assess effectiveness and costs. The program costs $6 million annually.
“I don’t think we pay enough attention to our immigration court system,” said Manjarrez, the former Border Patrol agent. Lawyers who are familiar with complicated immigration law can also help make sure asylum claims are clear and well-documented, saving time, he said. “If checks are being cut and I'm the Border Patrol guy, and they say, 'We’ll give you more agents and more wall,’ I‘d say, ‘No -- send it to the immigration courts.’ It’ll help us in the long term, because they'll help the flow and start to slow detentions.”
The immigration court system has made progress in hiring new judges since Trump took office, putting the total at 334. But more than 100 positions are still vacant and advocates estimate it would take around 200 extra judges to tackle the backlog.
Another short-term tactic to stem the backlog and limit fraud is to process newer asylum cases more quickly. In March, USCIS announced a new policy: Instead of processing affirmative asylum claims on a chronological basis, they’ll now switch to handling the newest claims first. Lawyers are alarmed that clients with strong asylum claims who have been waiting for years to move on with their lives will now be put on hold indefinitely. “I think that’s going to have a devastating impact,” said Jaya Ramji-Nogales, a law professor at Temple University and the author of Refugee Roulette. “If their claim was granted, they could bring their family over and regularize their family’s status here. Now they’ll be stuck in limbo.”
But Meissner saw the measure as a pragmatic step to restore faith in the system and get asylum claims processed in a timely manner again. She said during her time leading the INS, the precursor to USCIS, she faced the challenge of reducing a backlog of more than 400,000 cases in 1994. INS instituted a similar last-in, first-out system and made asylum-seekers wait six months to get a work permit instead of as soon as they filed an application. The changes yielded results: new claims slowed and approvals went up. “These are tough decisions,” she said. “What you want to do is set up the system that makes it possible to do the job and curb the possibility of abuses.”
More worrisome to some are new policies aimed at the courts.
Sessions has broad authority over immigration courts because they operate under the U.S. Department of Justice. This means he has the power to select immigration judges, overturn Board of Immigration Appeals decisions, and decide precedents, all with little oversight.
In April, the Justice Department introduced a quota system on immigration judges tied to their job performance ratings. The new rule requires judges to process at least 700 cases a year (they usually process an average of 678) to earn a satisfactory grade. Judge A. Ashley Tabaddor, president of the National Association of Immigration Judges, said such a change would damage the court’s credibility. “Quotas and deadlines that have been announced are, frankly, unreasonable,” she said. “The very concept is in conflict with the independent decision-making authority of judges.”
Last year, the Justice Department also released a memo encouraging immigration judges to “carefully consider administrative efficiency” before granting continuance requests, which allow asylum-seekers extra time to find legal representation or gather necessary documents. The memo cited a 2012 DOJ Inspector General report that found that “frequent and lengthy continuances” were a significant factor in increased case processing times and that over half of all cases surveyed had one or more continuances.
Lawyers predicted these new policies may actually increase the immigration court backlog because rushed asylum hearings would result in more lawyers appealing cases, arguing that due process was violated.
Recent changes aren’t just about speeding up asylum decisions and deportations.
On the campaign trail, Trump often decried what he called “catch and release” -- processing asylum-seekers with an initial screening at the border, and then releasing them on bond until their court date. His administration has begun detaining almost all defensive asylum-seekers coming through the border until their cases are heard, arguing that this is a necessary step to ensure the immigrants don’t melt away and miss their hearings.
But lawyers see the expansion of detention as an effort to deter asylum-seekers from continuing with their claims — which contravenes international law. “Our detention system is unique in the way that it is truly prison-like, even though we recognize that asylum is not part of the criminal justice process,” said Denise Gilman, a law professor who runs the Immigration Clinic at the University of Texas. Keeping asylum-seekers locked up for months or even years when they’ve committed no crime further traumatizes people already suffering, she said. Some simply give up and accept deportation in order to leave detention.
Sessions has also indicated plans to make it even more difficult for some types of asylum cases to qualify for protection. In March, he referred two major Board of Immigration Appeals cases to himself. In one, he vacated a ruling that held asylum applicants have the right to a full hearing before a judge, an effort to cut off asylum-seekers who spend years trying to appeal denied cases or who have cases that, on paper, look unlikely to succeed. Advocates worry the decision may be used to summarily deport asylum-seekers who face language barriers or have difficulty documenting their asylum claims, especially those without legal counsel.
In the other case, he is reviewing whether victims of “private crime” – in this case, domestic violence – can qualify for asylum. Experts predict the decision may also be used to prevent most Central Americans fleeing gang violence from receiving asylum.
Gang violence and domestic abuse fall under the most flexible of the five asylum categories: “membership in a particular social group.” This has been a controversial category for years, lawyers said, because it does not have a clear definition. In parts of Central America, people don’t face outright war, “but high levels of civil violence, often combined with an inability of the government to protect its people,” said Leon Rodriguez, director of USCIS from 2013 to 2017. “The upshot is that you have a lot of people who are pretty scared, and in a lot of cases, are really at risk of dying violently when returning to countries, but it doesn’t fit into the traditional definition of asylum and refugee status.”
Some judges regularly accept the “particular social group” categorization for women facing gender-based violence; others rarely do. In recent years, gang violence in Central America has risen to an unprecedented level and pushed countless people to flee for their lives, but the courts still only recognize Central Americans claiming gang persecution as legitimate asylum-seekers in narrow cases – around 80 percent of asylum claims from Central America were denied in immigration court in 2016.
Play the Game
Experience the steps of an asylum claim that fits into the “particular social group” category in the story of a woman from El Salvador fleeing domestic violence.
While Sessions’ decision on the issue, expected in May, may narrow the definition to exclude almost all Central American claims, advocates have long argued for widening the language of “particular social group” to help meet the struggles of the specific conflicts that the world faces today.
“Nobody would be able to predict what forms persecution would take in the future, so the authors of the 1951 Refugee Convention and 1967 protocol purposely designed a definition that would adapt to changing modern reality,” said Stephen Legomsky, the chief counsel of USCIS from 2011 to 2013. He favors expanding the “particular social group” language to fit people fleeing gender-based violence in countries that don’t have adequate legal systems to protect women and LGBT communities, and some people trying to escape gangs.
But these kinds of steps seem unlikely under the current administration. As Bon Tempo, the historian, noted, refugee policy has always been “a product of politics, and controversial.”
“I try to caution people against falling into two traps: the ‘Statue of Liberty’ idea: “give us your poor, your wretched,” open-door image. And the other extreme, like what happens in the 1930s, where European Jews are facing persecution from the Nazis and America does largely shut its doors,” he said.
“The reason immigration politics gets so hot is because it basically is an exercise in self-definition: This is what the U.S. is. This is what we stand for. And there are a lot of different opinions on what the actual answers to those questions are.”