Forty Members of Congress recently wrote a letter to DHS Secretary Alejandro Mayorkas and USCIS Director Ur Jaddou expressing concern about the affirmative asylum backlog, which as of April 2021, had reached a record high — nearly 400,000 applications.
An asylum application is considered “affirmative” when the applicant is not in removal proceedings.
USCIS asylum officers adjudicate affirmative applications, whereas in removal proceedings, immigration judges adjudicate them. The applications are considered “defensive” in removal proceedings because they prevent the applicant from being deported.
Currently, USCIS has around 800 asylum officers. Biden plans to hire 1,000 more, but apparently doesn’t intend to use them to reduce the affirmative application backlog. Instead, Biden has proposed a regulation that would authorize asylum officers to adjudicate the asylum applications of aliens apprehended at the border who otherwise would have to be adjudicated by immigration judges. He expects this to reduce the immigration court’s 1,425,447 case backlog.
The members of Congress who sent the letter raise legitimate concerns, but I don’t think the solutions they propose would reduce the backlog.
Affirmative asylum application process
An alien does not have to have lawful immigration status to be eligible for asylum, but section 1158(d)(5)(A)(i) of the Immigration and Nationality Act (INA) prohibits granting an affirmative asylum application until the identity of the applicant has been checked to determine whether he is inadmissible or deportable and whether he has done something that would make him ineligible for asylum.
Asylum applicants are interviewed by USCIS asylum officers in a non-adversarial manner, but they can bring an attorney with them to the interview. The asylum officer decides whether asylum should be granted, and his decision is reviewed by a supervisory asylum officer.
With some exceptions, if the asylum officer denies an alien’s asylum application and the alien appears to be inadmissible or deportable, the officer is required to refer the case to an immigration judge for removal proceedings. If this happens, the alien can submit his asylum application again in the removal proceedings and the immigration judge will do an independent review of his persecution claim.
Congress members suggest a new approach
According to the members of Congress who sent the letter, USCIS has been processing affirmative asylum applications under a “last in, first out” (LIFO) approach. Except for a three-year period when USCIS switched to a “first in, first out” policy, it has used the LIFO approach for more than 25 years.
They make the following suggestions for a more balanced approach that would prioritize new cases and provide relief to those who have been waiting for a decision on their cases the longest:
- Have some of the asylum officers work on the oldest applications to ensure that the oldest cases are being addressed; and
- Create a five-year “cutoff period” after which a pending asylum application will be prioritized in the application queue.
Changing the order in which applications are considered isn’t going to reduce the number of applications. Moreover, prioritizing applications according to how long they have been in the queue presumes that the significant difference between the applications is how long they have been in the queue, which isn’t the case.
The significant difference is in how likely they are to be granted. The fact is most of them are going to be denied. On average, more than 70 percent of affirmative asylum applications are denied.
The problem is that — by law — asylum is limited to people who are outside of their country of nationality and unable or unwilling to return because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Why do aliens file affirmative asylum applications that aren’t likely to be granted?
Absent extenuating circumstances, they have to file an asylum application within one year of their last arrival in the United States to avoid being barred from applying for asylum later if they are arrested and placed in removal proceedings. Also, they may apply for employment authorization 365 calendar days after they file their affirmative applications. This permits them to work lawfully in the United States until their applications are adjudicated, which could be a very long time — in some cases, close to seven years.
To reduce the backlog, it would make more sense to summarily deny the applications that don’t have a significant chance of being granted.
A similar system is already being used: Asylum-seeking aliens who are apprehended after making an illegal border crossing or who are seeking admission at a port of entry without proper entry documents may be put in expedited removal proceedings.
In these proceedings, they are interviewed by an asylum officer who determines whether they have a credible fear of persecution. The term "credible fear of persecution" means that there is a significant possibility that they can establish asylum eligibility. If they establish a credible fear, they are entitled to have their asylum application adjudicated by an immigration judge in removal proceedings. If not, they are subject to summary removal.
The same evaluation could be performed on the persecution claims in the “application for asylum and for withholding of removal” that affirmative asylum applicants file. Summarily denying applications that do not have a significant possibility of establishing asylum eligibility would reduce the backlog, and it would focus resources on interviewing applicants who do have a significant possibility of establishing asylum eligibility.
Moreover, the denial of an affirmative asylum application is not a final rejection of the applicant’s persecution claim. The applicant will have another chance to establish asylum eligibility if he is put in removal proceedings before an immigration judge.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.