Interesting Takeaways in Recent Report on Asylum

Backlogs create an incentive to apply simply to get a work permit

By Andrew R. Arthur on October 3, 2018

The Migration Policy Institute (MPI) recently issued a report captioned "The U.S. Asylum System in Crisis, Charting a Way Forward". I will discuss the recommendations in that report in a future post. There are some important takeaways that are worth noting in the interim, however.

I briefly detailed the U.S. asylum system in my April 2017 Backgrounder captioned "Fraud in the 'Credible Fear' Process". As I stated:

There are two different processes by which an alien may file for asylum: the affirmative asylum process and the defensive asylum process. An alien physically present in the United States may obtain asylum through the affirmative asylum process regardless of how the alien arrived in the United States, or the alien's current immigration status. An affirmative asylum application is filed with [U.S. Citizenship and Immigration Services (USCIS)], which then schedules a non-adversarial interview (that is, an interview without confrontation by a government attorney) by an asylum officer; if the asylum officer denies the application, the alien can renew the application in removal proceedings before an immigration judge.

A defensive application for asylum is filed when an alien is seeking asylum as a defense against removal from the United States. For asylum processing to be defensive, the alien must be in removal proceedings in immigration court. Before an alien can file such an application, the immigration judge must have found that the alien is removable for entry without inspection or on some other ground. Those proceedings are adversarial, and the United States is represented by an attorney from ICE.

MPI describes "credible fear", that is "a claim for protection at or near the U.S. border" as a "third path", i.e., "a different, hybrid system that involves both USCIS and" the Executive Office for Immigration Review (EOIR), which is the Department of Justice (DOJ) agency with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA). This characterization is as good as any, but in reality it is more of a screening process that leads to a defensive asylum application. As I described credible fear in my April 2017 Backgrounder:

A credible fear request is a precondition to filing a defensive asylum application for an alien in expedited removal proceedings under section 235(b) of the Immigration and Nationality Act (INA). That section of the INA allows immigration officers — rather than judges — to order the deportation of aliens who have failed to establish that they have been in the United States continuously for two years and who have been charged with inadmissibility under section 212(a)(6)(c) (fraud or misrepresentation) and/or section 212(a)(7) (no documentation) of the INA. DHS has expanded its use of expedited removal over the years.

The most common instance in which DHS uses expedited removal is when it apprehends (1) an alien seeking admission without a proper entry document at a port of entry; or (2) an alien who is attempting to enter or who has entered illegally along the border. If the alien asserts a fear of persecution, the arresting officer will refer the alien to an asylum officer for a "credible fear interview". If the asylum officer determines that the alien has a credible fear, the alien is placed in removal proceedings before an immigration judge, where the alien can file his or her application for asylum.

Under section 235(b)(1)(B)(v) of the INA, "the term 'credible fear of persecution' means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208."

The number of aliens claiming credible fear has increased exponentially in recent years. As Attorney General Jeff Sessions stated in an October 2017 speech at EOIR:

Here are the shocking statistics: in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016 — nearly a 19-fold increase — overwhelming the system and leaving those with just claims buried.

According to USCIS, the agency received 78,564 credible fear cases in FY 2017, and issued 79,710 decisions. Fear was established in 60,566 of those decisions, was not established in 8,245 cases, and an additional 10,899 were closed for various reasons in that year. This means that the rate at which credible fear was found was anywhere between almost 76 percent of the total cases and 88 percent of the cases in which credible fear was adjudicated.

The numbers in FY 2018, as reflected in USCIS statistics, have not been any better. By the third quarter of FY 2018, the agency had received 73,283 credible fear cases. It issued 72,661 decisions: In 55,562 cases, credible fear was established; in 6,803 cases, credible fear was not  established; and 10,296 cases were closed. Again, this means that the rate at which credible fear was found was anywhere between 76 percent of the total cases and 89 percent of the cases in which credible fear was adjudicated. At least the agency was consistent.

MPI reported that this "dramatic increase in credible-fear case receipts, in particular, has reshaped the work of the [USCIS] Asylum Division." Even that is something of an understatement, as MPI indicates that the agency "expected approximately 40 percent of its asylum officers to be occupied with conducting credible-fear screenings in 2017," and therefore were unavailable to adjudicate affirmative asylum claims. This is particularly notable given the fact that, as MPI noted: "between FY 2013 and 2018 ... the number of asylum officers nearly doubled from 272 to 520, with authorization to hire up to 687 total officers."

Not only has the number of credible fear cases exploded, but so has the number of affirmative asylum claims. According to the USCIS Ombudsman's "Annual Report 2018": "The asylum application backlog, defined by the Asylum Office as all pending applications, has reached record numbers." Specifically:

In 2009, the Asylum Division received approximately 2,400 applications per month; by FY 2018, it was receiving over 8,000 filings per month. As of March 31, 2018, USCIS had 318,624 affirmative asylum applications pending final decision from the Asylum Division.

MPI concluded:

Thus, despite seeing its resources increase in recent years, the asylum division has devoted significantly less capacity to adjudicating affirmative asylum applications, even as these cases grew in number.

The increase in the affirmative asylum backlog at USCIS has had consequences beyond simply delaying adjudications. The ombudsman found:

The growing backlog of affirmative asylum filings has lengthened processing times. Applications now often remain pending for well over a year, depending on the jurisdiction, before asylum seekers are even interviewed. This is long beyond the 180-day adjudication time frame specified in the statute.

The Asylum Division surmises that this long wait has incentivized individuals to claim asylum in order to obtain work authorization. The law requires those filing an asylum application to wait 150 days before requesting employment authorization, with the caveat that USCIS may not grant work authorization to an asylum applicant until 180 days after filing. When the Asylum Division had a smaller pending caseload and adjudicated affirmative asylum cases more quickly, it often reached asylum decisions prior to the 150-day mark, including denials of meritless applications, which rendered the applicants ineligible for employment authorization. However, USCIS presumes the backlog has created an incentive to apply for asylum — without a strong case, or even fraudulently, for the purpose of obtaining an [Employment Authorization Document (EAD)] while the delays continue. The agency suspects that these EAD-motivated applications have exacerbated the backlog. [Emphasis added.]

The agency's "surmises", "presumptions", and "suspicions" belie a certain level of certitude that the asylum system is being abused, at least to some (and possibly a significant) extent by aliens seeking EADs to work in the United States. And it has just as likely created a vicious circle that will just increase the backlog even more.

The attorney general's decision in Matter of A-B-, once fully implemented, should cut the number of credible fear findings by limiting the number of possible asylum claims, as I explained in a July 2018 post. The effectiveness of that decision, however, will likely be blunted to a significant degree, for reasons that I will detail in my next post.

Topics: Asylum