The Executive Office for Immigration Review (EOIR, the Department of Justice (DOJ) component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA)) issued a Notice of Proposed Rulemaking (NPRM) last week. Among other things, EOIR proposes to amend the regulations to better enforce the 180-day deadline that Congress has mandated for adjudication of asylum claims by immigration judges (IJs). Given the fact that there were more than 560,000 applications for asylum, statutory withholding of removal, and protection under the Convention Against Torture (CAT) pending before the nation's 509 IJs as of August 14, the proposals in the NPRM are overdue — but some additional amendments are in order.
The Statutory 180-Day Deadline For Adjudicating Asylum Claims
Section 208(d)(5)(A)(iii) of the Immigration and Nationality Act (INA) mandates that, absent "exceptional circumstances", asylum applications are to be administratively adjudicated (in this context, by IJs) within 180 days of the filing of those applications.
That 180-day deadline is separate from (but often confused with) the 180-day period after which asylum applicants become eligible to be granted employment authorization, which is found at section 208(d)(2) of the INA. As the NPRM notes, both of these provisions demonstrate "Congress's strong expectation that asylum applications would be adjudicated within 180 days of the date of filing" — the former expressly, the latter implied.
They are not identical, however, as EOIR makes clear, inasmuch as the former provision can only by statute be tolled under "exceptional circumstances", while the latter is tolled only — pursuant to regulation — by a continuance that is requested by the respondent (the source of the so-called "asylum clock", which governs the timing of the alien's eligibility to apply for employment authorization). Nonetheless, there is a great deal of confusion concerning the two standards, as the NPRM admits.
Rationale Behind the 180-Day Deadline
There are compelling reasons for both statutory provisions, and in particular for the statutory deadline in section 208(d)(5)(A)(iii) of the INA.
The filing of an asylum claim (regardless of whether it is meritorious or not) is an avenue by which a removable alien can extend his or her unlawful presence in the United States, as asylum applicants cannot be removed from the United States while their applications are pending administratively.
But, as I explained in a July 20 post:
[F]or the last (almost) two decades, aliens have been free to exploit the asylum system, filing worthless applications with no sanctions so long as they did not "fabricate" any of the "material elements" therein — that is, lie. In fact, you don't have to assert any facts at all — your application will not be considered "frivolous" because facts that are not stated cannot be "materially fabricated".
DOJ and DHS have proposed elsewhere to address the issue of such "frivolous" asylum applications, but the filing of non-meritorious asylum claims will still allow the applicant to remain in the United States pending IJ adjudication and BIA review (if any). Those non-meritorious claims have real-world consequences for aliens who really do require the protection of the United States, however.
The 2020 Annual Report from the USCIS ombudsman reveals that there are more than 350,000 affirmative asylum applications pending before USCIS (up from 15,526 in 2012). As noted, more than 560,000 asylum, statutory withholding, and CAT cases are pending with the immigration courts. This means that there are potentially tens of thousands of valid asylum claimants who are awaiting adjudication.
As I explained in that July 20 post: "Those aliens deserve protection — for themselves and their families — and the right to get on with their lives in the United States."
With respect to family members, if you are a human-rights advocate from the People's Republic of China (for example), and your husband and children are still under the watchful eye and subject to the tender mercies of Beijing, they, too, are in real danger. Spouses and children can seek "derivative asylum" status under section 208(b)(3) of the INA once the primary applicant is granted asylum, and (for purposes of the NPRM) immigration court is where that process starts.
But the ability of those aliens and their families to get the protection they need and deserve is impeded by the primary asylum applicants' inability to get into court to have their cases heard in a timely fashion. That is not the only harm that the delay in the adjudication of asylum applications creates, however.
The NPRM notes, "delaying filing of the claim increases the likelihood that important evidence, including personal recollections, may degrade or be lost over time."
Given the fact that many (if not all) asylum claims hinge on the credibility of the applicant and any witnesses, the "degradation" of personal recollections can significantly (and negatively) impact those claims. The possibility that extrinsic evidence (such as police reports, affidavits, and articles on local country conditions) could be lost as a result of delay makes that fact worse.
The Current Status of the 180-day Asylum Deadline
Outside of detained courts, however, this congressional mandate is rarely, if ever, met.
The current median completion time for most detained cases was 46 days in FY 2019, up from seven days in FY 2008. That includes cases in which alien respondents file asylum applications, and the increase in those applications likely explains much of the increase in the time that it takes to complete a detained case today as opposed to a decade ago. Even detained aliens request time to file asylum applications, and extensions to supplement those applications and to file additional evidence. Nonetheless, I generally managed to get asylum claims completed in my detained court in about six weeks.
With respect to non-detained courts, the situation is worse — much worse. In January 2019, the National Immigration Forum (NIF) reported: "The length of the asylum process varies, but it typically takes between 6 months and several years." NIF explained that this includes both adjudication of affirmative asylum claims with U.S. Citizenship and Immigration Services (USCIS) and defensive asylum applications with the immigration court.
With respect to defensive asylum applications before the immigration court, NIF noted:
As of July 2018, there were over 733,000 pending immigration cases and the average wait time for an immigration hearing was 721 days. The backlog has been worsening over the past decade as the funding for immigration judges has failed to keep pace with an increasing case load.
The last three attorneys general have made funding for IJs a priority, yet even the increased rate of hiring has failed to keep pace with the ballooning immigration-court backlog.
The then-733,000 pending immigration cases referenced by NIF included both cases with defensive asylum claims as well as other proceedings, including contested removal cases and cases that involve other forms of immigration relief. That 721-day average wait-time, however, likely applied as much (if not more) to cases involving asylum applications as it did to other cases on the immigration courts' dockets.
By the third quarter of FY 2020 (through June 30, 2020), that backlog before the immigration courts had grown to 1,206,369. Given the number of immigration courts that remain shuttered in response to the Wuhan coronavirus pandemic (including New York City's non-detained courts, the nation's largest), this backlog is unlikely to get much smaller anytime soon.
Disincentives for Aliens to Complete Non-Meritorious Asylum Claims in a Timely Manner
For those aliens with non-meritorious asylum claims, there is no incentive to speed the removal process along. As the Supreme Court recognized in INS v. Doherty, "in a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." That is especially true for aliens with weak (or non-existent) asylum claims.
How Many Such Claims Are Clogging the Immigration Courts?
Between FY 2008 and FY 2019, only 14 percent of aliens who were apprehended by U.S. Customs and Border Protection (CBP) at the border and who made "credible fear" claims were granted asylum — despite the fact that 83 percent were found to have credible fear and referred to the immigration courts to make asylum claims. Of that 83 percent, only 45 percent actually filed asylum applications, suggesting that the other 38 percent simply gamed the credible-fear system to gain entry into the United States.
Just looking at the 45 percent who filed for asylum, however, the 31 percent grant rate (.14 divided by .45) for those aliens suggests that some portion of the actual applicants simply applied to gain employment authorization and live in the United States indefinitely — the goal of all illegal entrants. They would have a strong incentive to slow the asylum process down — and no incentive to complete their cases within the congressional mandate of 180 days.
That said, even that 31 percent grant rate was higher than the rate for asylum applications as a whole over the past decade. In FY 2019, it was 20.6 percent (the decade high was in FY 2011 at 31.35 percent, while the decade low was a paltry 15.8 percent in FY 2016). Again, the weaker the claim, the greater the incentives for asylum applicants to draw out their removal proceedings indefinitely.
EOIR's Proposed Regulations to Effectuate Congress's Statutory Asylum Deadline
In the NPRM, EOIR proposes to amend the regulations to assist IJs in meeting the 180-day statutory deadline for asylum adjudications.
One current problem with the current implementation of that deadline is that there is no definition of "exceptional circumstances" that would justify an IJ exceeding that 180-day mandate — or preventing an asylum applicant from requesting an IJ to do so.
The only standard governing IJs' grants of continuances (in asylum as in all other cases) is found in the current iteration of 8 C.F.R. § 1003.29. That regulation somewhat vaguely provides that an IJ may continue a case on motion of one or both of the parties "for good cause shown".
"Good cause" is a low bar and a flexible (not to say subjective) standard. As I have previously explained elsewhere, however, the absence of standards on what constitutes "good cause" with respect to continuances has placed IJs in a dilemma, because denying a continuance runs the risk that a reviewing court will find that the IJ has denied the alien "due process". That, in turn, has exacerbated the backlogs in the immigration courts.
The NPRM notes (correctly) that "good cause" and "exceptional circumstances" are two separate standards, however. To address this discrepancy, EOIR proposes to amend the regulations to define, by regulation, "exceptional circumstances" for purposes of exceeding the deadline in section 208(d)(5)(A)(iii) of the INA.
The proposed amendment would define the term so that it is consistent with — and largely mirrors — that term as defined in section 240(e)(1) of the INA. Section 240(e)(1) of the INA provides a definition of "exceptional circumstances" for purposes of rescission of an order issued in absentia — that is where the alien fails to appear, and is ordered removed — as well as for the attendant consequences of such an order.
Pursuant to that section of the INA, the term "exceptional circumstances" refers to such situations "as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien" that are "beyond the control of the alien". It does not, however, include "less compelling circumstances".
Thus, consistent with the temporal restriction in section 208(d)(5)(A)(iii) of the INA, the revised 8 C.F.R. § 1003.10(b) as proposed in the NPRM would read as follows:
In the absence of exceptional circumstances, an immigration judge shall complete administrative adjudication of an asylum application within 180 days after the date an application is filed. For purposes of this paragraph ... and of  §§ 1003.29 and 1240.6 ... the term exceptional circumstances refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the parties or the immigration court. A finding of good cause does not necessarily mean that an exceptional circumstance has also been established.
Similarly, the NPRM would amend the general continuance regulation in 8 C.F.R. § 1003.29, to add a second clause that is consistent with the amendment in the proposed regulation above. As amended, it would read as follows:
The immigration judge may grant a motion for continuance for good cause shown, provided that nothing in this section shall authorize a continuance that causes the adjudication of an asylum application to exceed 180 days in the absence of exceptional circumstances, consistent with section 208(d)(5)(A)(iii) of the Act and [8 C.F.R.] § 1003.10(b).
My Suggested Amendments to the Proposed Regulations
Note that the first of these proposed amendments refers to circumstances beyond the "control of the parties or the immigration court", but it focuses strictly on circumstances affecting the applicant — not U.S. Immigration and Customs Enforcement (ICE, which represents the government in immigration court), or the IJ him- or herself. But there are also delays in the asylum adjudication process that are caused by the IJ and ICE, and that are beyond their respective control.
Having been a trial attorney with the former INS (the precursor to the ICE attorneys who appear in immigration court), I respectfully note that government lawyers in immigration court are generally interchangeable in most cases. There were many times that I would pick up an asylum case at the last moment when the trial attorney who had the case became unexpectedly unavailable due to illness or some other factor, and I was hardly an outlier in this regard.
That said, it is not always the case that one ICE attorney can simply step in for another at a moment's notice. And sometimes evidence critical to the government's case (particularly resulting from a foreign investigation) is delayed, and as a trial attorney I would request a continuance to obtain such evidence (and as an IJ I granted such requests).
Similarly, as an IJ I would occasionally pick up an asylum case at the last minute. In certain instances, however (such as where testimony had already been heard in a case), that can be a difficult and extremely time-consuming task. Accordingly, I would propose that EOIR provide in the final rule amendments to the proposed regulations above to address such exigent circumstances for the IJs and ICE attorneys, as well.
Further, pursuant to 8 C.F.R. § 1208.11, an IJ can request comments from the Department of State (DOS) as to an individual asylum claim (which could include an in-country investigation). Although those comments are extremely helpful, it is rare for an IJ to do so, for two reasons. First, DOS does not move quickly, and those requests can remain pending indefinitely — bringing the proceedings to a halt. Second, the process for making such a request through EOIR is cumbersome and time-consuming.
DOJ should propose a regulatory amendment to that regulation to streamline the process, but at the same time amend its proposed regulation to include IJ requests for DOS comments under the definition of "exceptional circumstances".
The referenced proposed amendments in the NPRM will greatly improve the asylum adjudication process (by expediting meritorious asylum claims and removing the incentives for the filing of non-meritorious claims), and will more importantly help to effectuate Congress's 180-day deadline for administrative asylum applications.
In its final rule, however, EOIR should amend its proposed regulations to allow IJs to exceed that 180-day mandate in cases where exceptional circumstances prevent IJs and ICE attorneys from performing their statutory and regulatory duties in accordance with Congress's dictates. It should also amend 8 C.F.R. § 1208.11, to expedite the administrative process by which IJs can request DOS comments.