The Department of State (DOS) — with the Department of Homeland Security (DHS) and Department of Health and Human Services (HHS) — transmitted their Report to Congress on Proposed Refugee Admissions for Fiscal Year 2021 on September 30. My colleague Nayla Rush broke down that report, and the changes that the Biden-Harris ticket has proposed to the number of entries, in an October 6 post, but three statistics stick out therein: the number of aliens seeking asylum from DHS, the number seeking asylum as relief from removal from the immigration courts, and the credible fear grant rate in FY 2020.
Aliens who are present in the United States may seek what is called "affirmative asylum" from asylum officers (AOs) in U.S. Citizenship and Immigration Services (USCIS), an agency in DHS. AOs may grant or deny those aliens asylum.
If an AO opts not to grant the alien asylum, and the alien is removable (as most are), the AO can refer the alien to immigration court (part of the Executive Office for Immigration Review (EOIR) within the Department of Justice (DOJ)), for the alien to renew that application as a defensive application (relief from removal) in removal proceedings.
In addition to adjudicating those affirmative asylum applications, AOs also consider "credible fear" claims for aliens in expedited removal proceedings under section 235(b)(1) of the Immigration and Nationality Act (INA). Those AOs can find that the alien has credible fear (in which case the alien is referred to immigration court to file an asylum application before an immigration judge (IJ) in removal proceedings), or determine that the alien does not have credible fear (in which case the alien can ask an IJ to review the AO's decision).
There were an average of 500 to 550 AOs at USCIS in recent years (USCIS is authorized for 745 AOs), but last year USCIS announced that it planned to hire 500 new employees in the asylum branch of the agency (half of whom would be AOs; the rest staff), and, as of October 2019, they were on track to meet that goal. In a February 2020 report, however, the Government Accountability Office (GAO) was critical of USCIS's efforts to train those AOs to perform credible fear screenings.
The number of such credible fear referrals skyrocketed in FY 2019, as almost one million aliens entered the United States illegally along the Southwest border or sought entry without proper documents at the ports of entry along that border. As GAO noted: "The number of referrals for credible fear screenings in the first two quarters of fiscal year 2019 alone was larger than the total number of referrals in each of fiscal years 2014 and 2015."
In fact, AOs completed 5,523 credible fear cases in FY 2009, but in FY 2019, it completed 102,204 (out of 105,439 cases received) — a more than 1,750 percent increase. To help out, DHS assigned refugee officers, former AOs, and (in a controversial move), Border Patrol agents to handle interviews. A federal judge blocked that last effort in August.
All of which brings me back to the DOS report. As of August 31, according to the department, there were 598,692 asylum claims (in addition to credible fear claims) pending with USCIS. Assuming that there were the authorized 745 AOs on that date (the actual number — a moving target — is hard to find), that means that each AO is assigned almost 804 cases to adjudicate — not counting new cases that will be added.
In my experience, AOs generally take two hours to conduct interviews and complete about two per day, but USCIS's statistics show a much lower completion rate. In September 2019, according to USCIS, AOs conducted 2,799 interviews and completed 6,286 cases. Assuming that there were 500 AOs at the time (likely on the low side), that means they each held 5.6 interviews each that month and completed 12.6 cases per capita — much fewer than one a day.
On top of the AOs' asylum workload, according to DOS, there were 549,724 asylum claims (as of June 30) pending with the nation's 520 IJs (the latter as of October — 20 new IJs were on-boarded on October 9, meaning that the number in June was actually closer to 500).
Again, that means that each IJ is assigned 1,057 asylum cases. As a former IJ, I generally completed one to two asylum cases per day, and at best IJs can hear approximately four (assuming that the alien shows up and is ready to go at the merits hearing date, which does not always happen). Consequently, as the Transactional Records Action Clearinghouse (TRAC) reported, in 2019 asylum applicants in immigration court on average waited almost three years for their cases to be decided, time that they will spend in the United States — and a timeframe that does not count appeals.
And, again, the DOS report does not count any new asylum cases that have been filed in the interim in immigration court.
Combined, however, these statistics show that there were 1,148,416 pending asylum cases in the United States — at a minimum. If those applicants were a state, they would be the 43rd largest in the United States, ahead of Montana, Rhode Island, Delaware, the Dakotas, Alaska, Vermont, and Wyoming.
Plus, as the foregoing shows, an asylum applicant denied by USCIS can renew his or her claim with the immigration court. In September 2019, for example, AOs approved 34 percent of the asylum claims they adjudicated (1,501), and referred (for one reason or another) 66 percent (2,901). Those cases — assuming that the aliens actually appear in immigration court — will end up on the IJs' dockets.
This is a hole that the AOs and IJs will not be able to dig themselves out of without a massive increase in resources.
The Trump administration has, in fact, increased the total number of IJs by 70 percent and, as noted, has at least tried to increase the number of AOs by 50 percent. Joe Biden vows to double the number of IJs (as well as the number of EOIR staff and interpreters), but that hiring will take time and a significant increase in resources — resources Congress, which is stingy when it comes to immigration, may not fund.
Those resources will not simply be required for additional pay for those involved (and IJs can make up to $181,500 per year), but also court room and office space. Given the fact that the largest immigration courts (again, according to TRAC) are in Manhattan, Miami, San Francisco, and Los Angeles — where rents are extremely high — the Biden proposal will require a massive capital expenditure.
And, as I recently noted, Biden wants to significantly increase the AOs caseload, giving them the duty of adjudicating (as an initial matter) asylum claims by aliens who are found to have credible fear.
How many applications would that add to USCIS's docket? According to EOIR, between FY 2008 and FY 2019, 83 percent of aliens who claimed credible fear in expedited removal proceedings received positive credible fear determinations. So, based just on the FY 2019 numbers, more than 92,000 new asylum cases per year would be foisted on those 745 AOs.
I will note, however, that the credible fear grant rate plummeted in FY 2020 (through August 31), to just short of 42 percent (again, according to DOS).
Among the factors that I believe contributed to that drop are the (since enjoined) practice of seconding Border Patrol agents to do credible fear interviews (they found credible fear in just 35 percent of cases, according to one source), the third-country transit bar (which I analyzed at length in July 2019), and a variety of other Trump administration executive initiatives (all of which I discussed in February 2020).
Biden has promised to end the third-country transit bar, and would likely end the other initiatives as well. That would almost definitely raise the positive credible fear rate back to its historical level (if not higher).
And, as I explained on October 21, the former vice-president's proposals (including requiring AOs to adjudicate asylum claims for aliens found to have credible fear) "will encourage other foreign nationals to enter the United States illegally". So any relief that the immigration courts would receive from giving AOs the first chop on asylum claims would likely be negated by an increase in the total number of aliens who enter illegally to claim credible fear to begin with.
It is understandable that foreign nationals would want to seek asylum in the United States. We are the richest country in the world, and one of the safest. And asylum status brings with it the opportunity to access multiple public benefits (referenced in the DOS report). Of course, simply applying for asylum in this country enables the applicant to live here and (after a brief period of time) work here indefinitely.
On the latter point, the alien can remain while the AO is considering his or her asylum application, and even if denied, during the almost three years that the IJ is considering the application — not counting appeals.
Even then, the odds of the alien actually being removed are slim to none: In FY 2019, ICE removed just 85,958 aliens from the interior of the United States, 91 percent of whom had criminal arrests or convictions. That means, in the entire year, ICE removed about 7,736 non-criminal aliens — just less than seventh-tenths of 1 percent of the number of asylum claims that are pending.
Over the past dozen years, IJs have granted anywhere between 31.35 percent of all asylum claims (in FY 2011) and 15.8 percent (in FY 2016), with the average in the low 20 percent range. Coupled with the AO grant rate, that means that most asylum applicants are ultimately denied. It is no wonder that the president described fraudulent and meritless asylum claims in April 2019 as "the biggest loophole" that is "drawing illegal aliens to our borders."
Congress needs to step in and address this issue, but it has not shown any indication that it will act. The last major legislation that attempted to reform asylum was more than 15 years ago and, if anything, pending proposals would just make the problem worse.
Biden, ostensibly, would address the asylum backlog by granting "over 11 million aliens" amnesty, but all that would do is reset the clock — it would not address the structural issues in the INA that encourage aliens to either overstay non-immigrant visas or enter illegally and apply for asylum.
The numbers don't lie — America, synonymous in many minds with asylum, has an asylum problem. Most Americans, however, likely have no idea how large that problem is. And no one has a permanent plan to address it.