Asylum-seekers face legal challenges and backlogs in New York City

Following months of a rapid influx of asylum-seekers to New York City – many fleeing political persecution in Venezuela, and many bused here from Texas and Arizona – the inflow of people at the southern border appears to be slowing under policy changes by the Biden administration.

But with more than 21,000 new arrivals in New York since the spring, the stream of migrants seeking asylum status at New York City’s immigration courts is as heavy as it has been for months.

On Tuesday morning, hundreds of recent migrants lined up outside lower Manhattan’s 26 Federal Plaza, which houses the largest of New York City’s three immigration courts. Some of the migrants were there to check in with Immigration and Customs Enforcement, while others had been called for their first hearings in their deportation proceedings.

Applying for and receiving asylum is a process that can take years, and the status is only granted to those who can prove that they have reason to fear persecution because of their race, religion, nationality, political opinion or membership in a particular social group. Asylum-seekers have one year after arriving in the United States to submit their asylum application, and they have to wait another five months after submitting that application to even apply for a permit to work in the United States.

For the thousands of migrants who have arrived in the past few months, the process of obtaining asylum status is a confusing and bureaucratic maze, exacerbated by an overwhelmed court system and a shortage of legal services for immigrants. For many, the maze begins outside 26 Federal Plaza at the crack of dawn. “It took me an hour to get here from the Bronx, and I’ve been here since 5 a.m.,” said Miguel, an asylum-seeker from Venezuela waiting outside the immigration court who declined to give his last name for fear it might affect his application. Others in line outside 26 Federal Plaza on Tuesday morning arrived as early as 4 a.m.

An immigration case is started by a notice to appear in court. Immigration attorneys said that in order to be paroled into the United States, the recently arrived asylum-seekers are being told at the border to appear for a check-in with ICE soon after arriving at their final destination, and that notices to appear are being filed with the court after those check-ins. Alexia Schapira, a supervising attorney at the Legal Aid Society, said asylum-seekers were not usually required to check in with ICE before a notice to appear is filed.

Because of the inordinately large number of people showing up at the building that houses both immigration court and ICE’s field office, attorneys and advocates said people were arriving for ICE check-ins as early as 2 a.m. or 3 a.m. in the hopes of just getting into the building. “The guards at some point just cut off the line and don’t allow all of the people into the building, even though they do have ICE appointments that day,” Lauren Wyatt, managing attorney with Catholic Charities Community Services, said in a press briefing hosted by New York Immigration Coalition last month.

Speaking to City & State on Tuesday, Wyatt said the situation hasn’t improved since the influx at the border has slowed. “The system is simply at capacity – or beyond capacity. It’s overloaded,” she said. “Because of that, the government isn’t able to process people, despite giving them requirements for processing.”

Immigration advocates are warning that the overloaded system is leaving applicants in a paradoxical situation in which they face a one-year deadline to apply for asylum but are unable or confused about how to take the initial steps to jump-start their application in time to meet that deadline.

People who are turned away from checking in with ICE because the building is over capacity have been instructed to schedule appointments over email. But those appointments have been scheduled as far out as mid-2024, far past the one-year deadline for recently arrived asylum-seekers.

Delays in starting the asylum application process also pushes back the process of obtaining temporary legal work authorization, which people can apply for 150 days after submitting their asylum application. “​​If the earliest they can submit that asylum application is sometime in 2024, that puts them at the earliest they can apply for their work permit at late 2024, which means that they will be here over two years without being able to work lawfully,” Wyatt said. “So people are really in an impossible position.”

Asked about the long timelines for ICE check-ins and confusion about how asylum-seekers can start their applications in a timely way, a spokesperson for the U.S. Department of Justice’s Executive Office for Immigration Review – which has jurisdiction over the immigration court at 26 Federal Plaza – said it has been in contact with the Department of Homeland Security. “Our immigration judges are aware of the issue and remain cognizant of it when adjudicating motions to reopen or continue cases,” a department spokesperson wrote in an email.The punishing maze that asylum-seekers face is one that could be at least clarified by immigration attorneys and legal aid organizations in the city. “Access to legal representation is one of the biggest single factors that can change the outcome of a case and that can help somebody navigate the legal system, and hopefully obtain the status or relief that they’re eligible for under current existing laws,” Camille Mackler, founder of the Immigrant Advocates Response Collaborative, said at a press briefing last month.

But advocates said there weren’t enough legal resources to meet the demand. Catholic Charities runs programs to assist people who do not have immigration attorneys and provides walk-in services at the city’s immigration courts. “Our program is in one of the courts almost every day, but there’s no way we can possibly see everybody,” Wyatt said. “Last Friday, our attorney was able to see eight people, and we turned away 50 people.” Wyatt and Mackler have asked for new city and state investments in immigration legal services and legal rapid response to help meet the moment.

Several people in line at 26 Federal Plaza on Tuesday, including a couple staying in a city shelter in Queens, said they hadn’t been in touch with any lawyers or received legal guidance. New York City has put up humanitarian emergency response and relief centers – one for families in the Row NYC hotel, and a tent city for single men on Randall’s Island – and opened more than 50 emergency centers in hotels around the city for temporary housing for the new arrivals.

A City Hall spokesperson said that asylum-seekers can access legal information at the Randall’s Island and Row hotel shelters, and that staff  at those locations can make appointments with legal providers through the city’s Asylum Seeker Resources Navigation Center. Mayor Eric Adams’ administration has also asked for state and federal investment and called for the federal government to expedite work permits for asylum-seekers.