The Biden administration announced plans Wednesday to speed up asylum decisions for migrants who sneak across the border and then demand protection, a move that could result in hundreds of thousands more people winning asylum each year.
Under the proposal, the job of deciding asylum claims at the border would shift from immigration judges to Homeland Security Department staffers, who are seen as more lenient than the judges. The asylum officers at U.S. Citizenship and Immigration Services could make decisions at the border rather than putting migrants through court proceedings, which can take years to complete.
The plan would also give Homeland Security legal authority to catch and release people who ask for asylum when “detention is unavailable or impracticable.”
The change was proposed at the urging of immigrant rights activists and was in the works for months. It still needs to go through the regulatory process, and the public will be able to submit comments.
But the administration seems confident it will end up approving the rule no matter what the public says. The Washington Times obtained an email USCIS Director Ur Jaddou sent to employees on Wednesday saying the agency is already moving to hire people to work on the cases they expect to develop from the changes.
Homeland Security Secretary Alejandro Mayorkas said his goal is to achieve “fundamental fairness” for asylum seekers.
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“Individuals who are eligible will receive relief more swiftly, while those who are not eligible will be expeditiously removed,” he said. “We are building an immigration system that is designed to ensure due process, respect human dignity and promote equity.”
Analysts said Mr. Mayorkas is likely to achieve swift relief for those who win their cases, but they doubt removal will be expeditious. The proposal would allow an asylum-seeker whose case is denied at the border to appeal to an immigration judge, and that decision could be appealed to a higher-level tribunal.
Numbers could be staggering. USCIS said it expects to receive about 150,000 asylum cases a year but leaves open the possibility of as many as 300,000. The current workload is about 80,000 to 100,000.
Under the current system, someone caught jumping the border is supposed to be put into deportation proceedings but can claim “credible fear” of being sent back home.
A USCIS officer decides whether the fear is valid. If so, the person is allowed to remain in the country to make an asylum claim before immigration judges, who are part of the Justice Department. Lawyers from U.S. Immigration and Customs Enforcement, one of USCIS’s sister Homeland Security agencies, argue the government’s case.
Credible fear is a relatively low bar, and a majority of migrants are approved. Asylum, however, has much tougher standards. Fewer than 1 in 5 who claim credible fear end up winning asylum in immigration courts.
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Under the proposal, the USCIS immigration officers would determine whether the fear is credible and then decide whether to approve initial asylum. Though those who are denied asylum could appeal to immigration courts.
Rosemary Jenks, vice president at NumbersUSA, which advocates for stricter immigration limits, said she expects approval rates to soar under the proposal because USCIS employees are far more lenient on asylum claims than judges.
“Like every other action the Biden administration has taken, this is yet another that will increase illegal immigration. They are just building the incentives to come,” she said.
USCIS asylum officers already decide cases that arise in the interior of the country, known as “affirmative” applications. Border jumpers have been handled differently. They are put into speedy deportation proceedings, and their claims are judged “defensive” as a means of blocking removal.
Asylum is supposed to be humanitarian relief for people fleeing government persecution in their home countries. It is similar to refugee status, though refugees apply outside the country while asylum seekers submit their claims on U.S. soil.
Asylum law has become complicated in recent years. Some courts approve claims for people who flee gang violence or abusive domestic relationships. Critics say such cases go beyond the intent of asylum law.
Migrants jumping the U.S.-Mexico border have discovered that the asylum system can delay deportation for years. As a result, case numbers have ballooned, creating a backlog that gives more incentive to file bogus claims.
That also means those with valid claims have to wait years before they get the certainty of asylum.
The Migration Policy Institute said the Biden administration’s proposal could be a “game changer” for asylum seekers.
Doris Meissner, a former director of the Immigration and Naturalization Service who is now at the Migration Policy Institute, said asylum officers have better training than judges to make such decisions. She proposed a similar system in a 2018 report.
“Today’s asylum system is failing both by undermining U.S. obligations in domestic and international law to protect those fleeing from persecution and by undermining the ability to ensure orderly and predictable control of entries at the border,” she said in a commentary for the institute.
Ms. Jenks, however, said the asylum officer corps is heavily made up of immigrant rights activists, so she expects them to be far more lenient than immigration judges.
Ms. Jaddou is an example of that revolving door. She was the chief counsel at USCIS in the Obama administration, went to work for an advocacy group during the Trump years and now has returned as director of USCIS.
In her email to employees Wednesday, Ms. Jaddou said they aren’t wasting time by ramping up operations for a new workload. She said the agency will post openings for both senior asylum officers and supervisory asylum officers, “who will be responsible for adjudicating and reviewing this new caseload.”
She called it the “first phase of hiring in support of this proposed rule.”
Ms. Jenks said it is odd to hire before the proposal has been finalized.
“It shows their disdain for the Administrative Procedure Act. They’re obviously just checking boxes. They have no care in the world for the comments they get,” she said.
USCIS, which handles the array of legal immigration work from business visas to citizenship applications, is already under severe strain with a serious case backlog. The Washington Times reported this summer that the agency faced a massive deficit of people just to handle its current caseload.
Employees at USCIS have just been tapped to help process the expected flood of migrants from Afghanistan.
USCIS is funded mostly by immigration fees. Asylum applications are supposed to be free of fees, so the agency might have to raise fees on other immigrants to pay for the new asylum workload.
In its proposal, USCIS said it has a 400,000-case backlog of affirmative cases and expects up to 300,000 more asylum cases. It plans to hire up to 4,647 more employees at a cost of more than $800 million in 2022 alone. Add in other expenses for offices and technology, and the total cost nears $1 billion.
In a statement to The Washington Times, USCIS said it is “assessing multiple avenues to fund the rule.”
USCIS says it will have to phase in the new plan, handling only a limited number of cases early on, while it staffs up and figures out its finances. In the meantime, the agency will continue to refer cases to immigration judges.
While USCIS’s workload would soar under the new plan, the immigration judges’ caseload would drop, the Biden administration predicted, since people would be winning approval at the border and never end up in the immigration courts.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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