Halfway through FY 2023 (through March) there were a total of more than 1.6 million pending asylum applications in the United States, in two different buckets: nearly 800,000 "defensive" asylum claims awaiting adjudication before fewer than 650 immigration judges in the nation’s immigration courts, with the other 842,000 being "affirmative" asylum applications in the USCIS backlog for decisions by fewer than 850 asylum officers, as my colleague Elizabeth Jacobs recently reported. That’s more applicants that than residents in 11 U.S. states, and an insurmountable burden for adjudicators, as the Biden administration has effectively broken the asylum system, and seeks to hide the damage.
The Immigration Courts
When I left the bench in January 2015, there were just fewer than 210,000 pending asylum claims, which seemed like a lot, given that I was one of 250-plus immigration judges. The immigration courts had several advantages then that they lack now, however.
The first was that my fellow immigration judges and I did a pretty good job of handling the flow. In FY 2015, just over 64,000 new applications came in the door, but thanks to the rate at which we were adjudicating cases, they added just about 40,000 claims to the backlog. That was not great, but it was manageable.
By contrast, more than 256,000 asylum applications were filed with the immigration courts in FY 2022, and you can add 196,000 more that were filed in the first six months of FY 2023 – at a rate six times as high as nine years prior.
The question why so many more asylum claims are being filed with the immigration courts now brings me to the second advantage immigration judges had in FY 2015: The Obama administration kept new border claims down by detaining most illegal entrants.
In a June 2022 filing with the Supreme Court, DOJ was forced to admit that the Biden administration’s border release policies were different than those of prior administrations – drastically different.
In FY 2015, for example, 66 percent of all aliens encountered by CBP at the Southwest border were detained through the removal process, 19 percent more were detained for at least a while before they were released, and just 14 percent were never detained.
By FY 2021 – Biden’s first partial year in office – those numbers had flipped, as the current administration detained just 10 percent of aliens encountered at the Southwest border throughout the removal process, and 64 percent were never detained.
So, you may ask, what does detention have to do with the rate at which asylum claims are filed and adjudicated at the immigration courts? Everything, and you can trust me because I was in a detained court – where those who appeared before me were in detention.
In FY 2015, the median completion time for a detained case was 35 days, and that’s from start to finish – from reading the charges to the alien respondent to issuing a decision and explaining appeal rights. That’s because asylum applicants in detention have no interest in drawing out the process; the longer it takes the judge to get to a decision, the longer aliens are in ICE custody.
By contrast, in FY 2015, it took an immigration judge more than two years to hear a non-detained asylum case – almost 22 times as long. Few of those non-detained respondents were anxious to get a quick decision because few of them had valid claims: less than 14 percent of all border asylum claims adjudicated in FY 2015 were granted. They wanted to draw the process out so they could continue to live and work here and build up the equities that could lead to some other form of relief.
Today, the median completion time for a detained removal case is just a week longer than it had been in FY 2015, 42 days. Meanwhile, the average time that it takes to hear a non-detained asylum claim is more than four years – twice as long as it had been nine years prior, and about 35 times as long as it takes a detained-court judge to reach a decision.
You don’t need to be good at math or even logic to realize that a non-detained immigration court process that takes much longer to complete is headed in the wrong direction, and likely to fail. And failing is what the asylum adjudication system is doing now, thanks to Biden.
Biden’s Border Releases Draw More Applicants
But that’s not all that the current president is doing to wreck asylum. Because Biden’s DHS has released nearly every alien CBP has encountered at the Southwest border, his policies are encouraging more aliens to come in and make more claims –some good, but a whole lot more weak, frivolous, or simply bogus.
You don’t have to trust me on the latter proposition, however. As the Supreme Court held in its 2020 opinion in DHS v. Thuraissigiam:
Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obligations. Most asylum claims, however, ultimately fail, and some are fraudulent. [Emphasis added.]
The Biden administration has opted to ignore the justices’ counsel, however, and instead to treat any asylum claim by all “aliens are apprehended at or near the border attempting to enter this country illegally” as “valid”.
As proof, consider the following exchange between host Bret Baier and DHS Secretary Alejandro Mayorkas on the May 1, 2022, edition of Fox News Sunday. Baier asked Mayorkas: “Is it the objective of the Biden administration to reduce, sharply reduce, the total number of illegal immigrants coming across the southern border? Is that the objective?”
To which Mayorkas replied: “It is the objective of the Biden administration to make sure that we have safe, legal, and orderly pathways to individuals to be able to access our legal system.” And by “to be able to access our legal system”, the secretary means to apply for asylum.
And thus, “to live up to the ideals” of our nation, the Biden administration has chosen to release most aliens encountered by CBP at the Southwest border in the past 30-plus months, to seek asylum in those slow and overburdened non-detained immigration courts, which has simply encouraged more to come.
As support for that contention, I turn to the March 8 opinion of U.S. district court Judge T. Kent Wetherell II in Florida v. U.S., a case filed by the state of Florida to challenge the administration’s border release schemes. He explained:
There were undoubtedly geopolitical and other factors that contributed to the surge of aliens at the Southwest Border, but Defendants’ position that the crisis at the border is not largely of their own making because of their more lenient detention policies is divorced from reality and belied by the evidence. Indeed, the more persuasive evidence establishes that Defendants effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course—assuming, of course, that the aliens do not simply abscond before even being placed in removal proceedings, as many thousands have done. [Emphasis added.]
The USCIS Asylum Officer Backlog
If that were where my analysis ended, it would be damning enough by my lights, and yet somehow the Biden administration has made it even worse by attempting to hide the deleterious effects of its border release policies on the U.S. humanitarian protection system. Which brings me to the crushing backlog of 842,000 pending affirmative asylum claims that have landed on the desks of USCIS asylum officers.
Jacobs largely relies on findings of the USCIS Ombudsman’s Office in its June 2023 annual report for her analysis, which is a key point because the current acting ombudsman, Nathan Stiefel, is a Biden appointee.
He explains that the administration’s vast (and in my expert opinion, illegal) expansion of its use of its limited parole authority to bring hundreds of thousands of inadmissible aliens into the United States is pushing and will push loads of new applications to the agency, at a time that increasing numbers of asylum officers are being drawn away to the border to consider credible-fear claims by illegal migrants.
That in itself, however, does not explain why USCIS’s affirmative asylum claim backlog has nearly doubled from the 430,000 pending applications the ombudsman reported in his June 2022 report.
Three EOIR Charts
Which brings me to three charts published by the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts.
The first is captioned “FY 2023 Second Quarter Decision Outcomes”, and the jargon it uses is not for immigration rookies. It reveals that in the first six months of FY 2023, immigration judges issued more than 223,600 decisions in removal cases, which is good because it shows that cases are moving.
Some 48.6 percent (108,633) of those decisions were orders of removal, 10.5 percent resulted in some grant of relief (like asylum or cancellation of removal), and in about .4 percent (859 cases), respondents were allowed to remain under some different form of humanitarian protection, likely because they weren’t eligible for asylum but applied for it anyway. About 2 percent of aliens were allowed to voluntarily depart in lieu of removal. So far, so good.
Things go south, however, as that chart reveals that 9.5 percent (21,390) of those cases were terminated, and a whopping 64,731 were simply dismissed – 29 percent of so-called “completions”. It’s not unheard of for a handful of removal cases to be based on flawed legal theories or for them to be improvidently commenced, but not nearly four in ten.
In a normal world, such high termination and dismissal rates would lead to widescale firings and inspector general investigations. Nothing about the world Biden has created is normal, however, as I’ll explain below.
The second chart, “Asylum Decision Rates”, is slightly more user-friendly. It shows that in the first two quarters of FY 2023, immigration judges decided 103,241 asylum claims; in other words, about 46 percent of the removal cases decided in that period, as described in the first chart, involved asylum.
Again, that’s a good thing, at least a first blush, because it shows that immigration judges are moving asylum cases. That blush dissipates quickly, however.
In 15.7 percent of those cases (16,192), immigration judges granted asylum, and in 18.3 percent (18,935 completions), asylum was denied. So what happened to the other 66 percent?
Some 9.5 percent (9,770) were “administratively closed”, shelved for years, likely so the applicants could await the adjudication of some other petition (usually a visa) by USCIS. Which brings me to the 56.5 percent – 58,344 cases – that fell into the black hole that EOIR terms “Other”.
As the agency explains: “Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn.” In other words, some “others” are “others”, a veritable bureaucratic Mobius loop of blather. Maybe I can help, but then again, maybe I can’t.
The third EOIR chart is captioned “In Absentia Removal Orders”, and it provides statistics on the number of alien respondents who were supposed to appear in immigration court but didn’t. It reveals that between October 2022 and the end of March 2023, immigration judges ordered 73,231 respondent no-shows removed in absentia.
Thus, some of those “Others” in the second chart were aliens who had filed asylum applications in court (likely so they could receive employment authorization), but who stopped coming to court and were ordered removed in absentia. A lot more, however, were likely border aliens whom the Biden administration assumed would seek asylum when it released them, but who really just wanted to be released into the country; once they were released, they never bothered to show.
EOIR likely doesn’t count the second group as “asylum” cases per se, however, because although they were released in hopes they would apply for asylum, they never kept their end of the bargain to do so.
Back to the USCIS Asylum Backlog
Which brings me back to the crushing and insurmountable USCIS asylum backlog. Many of those asylum “others” from the second chart are cases the first one described as “Terminations” and “Dismissals”. But why would ICE – which is supposed to represent the interests of the American people in immigration court – terminate or dismiss potentially bogus asylum cases filed by removable aliens?
Because, in April 2022, Kerry Doyle – ICE’s “Principal Legal Advisor” (the agency’s general counsel) – issued a 17-page directive to her attorneys telling them to pore through their hundreds of thousands of cases, and dismiss or terminate ones that don’t fit within DHS’s procrustean (and extra-statutory) “priorities”, so as to “do justice in each case”. In FY 2022, that led to ICE tanking nearly 92,000 pending cases.
Many if not most involved aliens without status, many if not most of whom were therefore applying for asylum as a last resort; kicking them out into the street doesn’t do them or “justice” much good. Which means potentially tens of thousands went from EOIR to USCIS to file or refile affirmative asylum claims.
If all of this sounds like a street scam in which a carny moves cases from one shell to another to hide them from the yokel, you’re right. The problem is, you’re the yokel, and what's on the line is your money, the nation’s sovereignty, and the U.S. humanitarian protection system. And you’re losing.
The U.S. can only “live up to its ideals and its treaty obligations” if it limits the number of asylum applicants here. That’s not unreasonable, as every country in our hemisphere except Cuba and Guyana grants some form of protection. President Biden, however, has ignored those limits in an apparent hope that the U.S. humanitarian system could handle the flow. It’s now breaking, a fact the administration is scrambling to hide from the American people.