The Battle of “N/A”

By Dolly Canevari, Class of 2021

At the bottom of the United States Citizenship and Immigration Service’s webpage dedicated to asylum applicants, tucked away in a discussion on the appropriate filing location, lies a seemingly innocuous statement: “[w]e will not accept your Form I-589 if you leave any field blank.”1 The United States Citizenship and Immigration Service (USCIS) continues, instructing potential asylees to answer all questions, “even if the response is ‘none,’ ‘unknown’ or ‘n/a.’”2 While slightly illogical, this requirement does not seem disastrous. But this baseless procedural requirement is costing asylum applicants precious time and threatening their ability to remain in the United States.3

Described as “Kafkaesque,” this policy was not necessarily implemented to solve a particular problem, but rather it adds a “preposterous new layer of red tape.”4 A USCIS representative stated the policy was a way to “save[] both the applicant and the agency time,” but advocates argue that the policy is just another barrier to keep individuals out of the waiting line for asylee status or a visa.5 Other advocates contend that this policy is “just another way of making it as difficult as possible to seek refuge in the US.”6 Asylum seekers have had their applications denied for not providing their non-existent middle name.7 One individual’s application was denied because the applicant failed to list an apartment number, despite the fact that the individual lived in a house.8 Yet another person was denied for placing a dash through an irrelevant section.9

This policy was also extended to U-Visa applications—visas for survivors of serious crimes.10 Journalist Catherine Rampell discusses that while many individuals can refile, others may lose out on their eligibility.11 She describes a U-Visa applicant who filed with her twenty-year old son.12 Between the time she filed and the time USCIS rejected her application (for leaving her son’s middle name blank), her eldest son turned twenty-one—aging out of his eligibility to be included on the visa.13 The applicant and her attorneys had to request that USCIS officials honor the original filing date.14 Further, these situations are not unique.15 The American Immigration Lawyers Association knew of 140 U-Visa applications alone that were rejected by early 2020 under this policy.16

This type of procedural rejection happened to a client at William & Mary’s Immigration Clinic. Every open box in this application was scrupulously marked with an “N/A.” The client’s application was denied, however, because “N/A” was not placed overtop three yes-or-no-checkboxes. Neither “yes” nor “no” was relevant to the client’s case. But a different asylum application that the Clinic filed around the same time, with the same “error,” was accepted by the USCIS office. While the Clinic was able to refile the rejected application, USCIS’s decision to reject the application cost the client time and wasted the Clinic’s time and resources. And the divergent treatment highlights that the Agency may be “using bureaucratic measures to funnel down the number of people applying.”17

What is the way forward? Even assuming that incomplete applications cost USCIS time, there has to be a better, less arbitrary policy that works to the benefit of the agency, applicants, and attorneys. Until the policy is revisited, asylum seekers, U-Visa applicants, and lawyers will continue navigating a nonsensical system while those that were previously rejected must needlessly wait. Attorneys also must search for the inevitable—the next hidden specification, tucked away on USCIS’s website.

Footnotes

[1] I-589, Application for Asylum and for Withholding of Removal, U.S. Citizenship & Immigr. Serv. (Sept. 30, 2020), https://www.uscis.gov/i-589.

[2] Id.

[3] See Catherine Rampell, This latest trick from the Trump administration is one of the most despicable yet, Wash. Post (Feb. 13, 2020, 7:24 PM), https://www.washingtonpost.com/opinions/the-trump-administrations-kafkaesque-new-way-to-thwart-visa-applications/2020/02/13/190a3862-4ea3-11ea-bf44-f5043eb3918a_story.html.

[4] Id.

[5] RJ Vogt, Broken Promise: Visa Program Leaves Crime Victims in Limbo, Law360 (Mar. 8, 2020, 8:02 PM), https://www.law360.com/articles/1250541/broken-promise-visa-program-leaves-crime-victims-in-limbo

[6] Charles Davis, Bureaucracy as a weapon: how the Trump administration is slowing asylum case, Guardian (Dec. 23, 2019, 6:00 AM), https://www.theguardian.com/us-news/2019/dec/23/us-immigration-trump-asylum-seekers.

[7] Rampell, supra note 2.

[8] Id.

[9] Davis, supra note 6.

[10] Rampell, supra note 2.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] See id.

[16] Id.; Vogt, supra note 5.

[17] See Vogt, supra note 5.