On Monday, DHS Secretary Alejandro Mayorkas asserted: "The prior administration completely dismantled the asylum system." That assertion has passed without much comment. The statistics, however, prove that he is just plain wrong.
For proof, I turn to statistics compiled by the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA). Helpfully, they have compiled the number of aliens granted asylum between FY 2009 (the beginning of the Obama administration) and FY 2020 (all but the end of the Trump administration).
Between FY 2017 (eight months of which were under Trump) and FY 2020, immigration judges (IJs) granted asylum 56,996 times. I would be remiss if I did not mention that IJs also denied 130,773 asylum claims during that period, but understand, the asylum laws of the United States are restrictive, and not every alien who fears some sort of harm or who suffered such harm will be eligible.
To put those numbers into context, between FY 2009 (again, eight months of which were in the Obama administration) and the last full year of the Obama administration (FY 2016), IJs granted asylum to 71,660 aliens — an average of 8,958 times per year.
By comparison, IJs under Trump in those the four years above (FY 2017-FY 2020) granted asylum 14,249 times per year on average.
In no single year under the Obama administration did IJs extend asylum protection to as many aliens as they did in any single year under Trump. That is true even if you count FY 2017 as a year under the Obama administration.
Why is all of this true, and why does it matter?
The Trump administration inherited immigration courts that were not "gutted" (another phrase Mayorkas uses to describe the prior administration's asylum efforts), but rather that had suffered from underfunding and neglect for decades, through numerous administrations.
Why do I say that? In FY 2016, EOIR had 289 IJs, total. At the end of that year, there were 521,507 pending cases — an average of 1,804.5 cases per IJ. Under Trump, EOIR went on an IJ hiring spree, and by the first quarter of FY 2021, there were 529 IJs — an 83 percent increase from FY 2016.
Of course, the number of cases before the immigration courts increased as well, as migrants surged into the United States, nonimmigrants overstayed, and lawfully present aliens committed crimes that made them removable. By the end of the first quarter of FY 2021, there were 1,277,152 pending cases.
That averages out to 2,414 cases per IJ, an increase over FY 2016. This shows that EOIR needs more IJs, and to his credit, President Biden has promised to hire them.
But the FY 2021 number is a more honest one, which more accurately reflects the immigration courts' case load than the FY 2016 one. Here's why.
For years, IJs and the BIA had used a procedural tool called "administrative closure" to hide cases that were on their dockets. Administrative closure enabled them to take pending cases of alien respondents (most of whom were admittedly removable) and shelve them. They usually stayed shelved.
In FY 2008, there were 171,820 pending but inactive cases under administrative closure. They were real cases, they just did not appear on the docket, or in the statistics. Although that number may seem large, administrative closure was traditionally not used that often, as it required the agreement of both the alien respondent and the government to close a case.
That all changed in January 2012, when the BIA overruled prior precedent, and held that IJs could close cases over the objections of the parties.
Imagine how much easier your job would be if you could simply take a dollop of your work and stick it in a drawer.
Not surprisingly, the number of pending cases that were administratively closed soared, going from 178,248 in FY 2011 to 324,762 in FY 2016 — an 82 percent increase in just five years.
In January 2018, the American Bar Association (hardly a Trump-friendly group) reported that the number of administratively closed cases was actually "350,000 — more than half of which were closed in four years under the Obama Administration and exceeding the total in the previous 22 years."
Then-Attorney General Jeff Sessions took the punchbowl from the party in May 2018, ruling that the BIA and IJs had no authority to administratively close pending cases. He did not recalendar all of those cases (there were so many by that point that it would have brought the immigration court system to a screeching halt), but he restricted it going forward.
Adding those administratively closed cases to active pending cases in FY 2016 gives you the real picture: Those 289 sitting IJs would have had a true docket of 846,269 — 2,928 cases per IJ.
Adding in the cases that were still closed in the first quarter of FY 2021 gives you a true docket of 2,996.5 cases per IJ — still high, but again remember, the Trump administration could not really control how many alien respondents are in removal proceedings (except by not enforcing the law, a tactic that the Biden administration largely seems to be adopting).
Many of those administratively closed cases were asylum claims. How do I know that? In April 2017, the BIA had to recalendar a case involving a Chinese national who was applying for asylum. That case had been closed at the request of DHS because it didn't fall within Obama-era immigration enforcement priorities (which really did "gut" enforcement).
That alien (W-Y-U-) likely had a good asylum claim, and wanted to get on with his life and to bring his family out of peril. That raises the question of how many bad asylum cases were administratively closed. Those alien respondents certainly did not want their cases placed back on the active docket, because those Obama-era "priorities" enabled them to live in the United States indefinitely.
The late Sen. Daniel Patrick Moynihan (D-N.Y.) famously stated: "You are entitled to your opinion. But you are not entitled to your own facts." That is especially true when it comes to the secretary of Homeland Security. And on the issue of the Trump administration "dismantl[ing] the asylum system", his facts are just plain wrong.