New border asylum policy would strain DHS’s finances

Homeland Security says it doesn’t know where it will get the money to handle the surge of border asylum claims it expects under its new plan to shift the work from immigration judges to department bureaucrats.

Tucked inside this week’s proposal was a projection that border asylum cases will likely surge to 150,000 and could reach as high as 300,000 — essentially three times the current rate.

And at either of those levels, “DHS does not believe it can meet the full staffing requirements with current funding,” the department said in a regulatory filing known as a notice of proposed rulemaking.

U.S. Citizenship and Immigration Services, the agency that would see the massive workload increase, estimates it would have to hire up to 4,647 new employees to a staff that currently numbers about 20,000.

USCIS is chiefly funded by fees paid by immigrants or their employers, and the agency said it doesn’t have the capacity within that structure right now to pay for that kind of hiring surge.

And since asylum applications are cost-free to those applying, the costs might have to be borne by those trying to gain citizenship, reunite with families or connect with a willing employer.

Prices those immigrants pay could rise an average of 26% if USCIS does see 300,000 applications a year, the agency said in its filing.

The proposal would shift the initial decisions on asylum cases at the border away from immigration judges over to USCIS asylum officers. Those officers already handle initial screenings of border cases to determine whether there’s a “credible fear” of being sent back home. Now they would not only do that initial screening but also decide the full asylum claim.

USCIS averaged about 80,000 credible fear cases a year from 2016 to 2020, peaking at about 102,000 in 2019, during the previous border surge.

Under the new proposal, the agency expects 150,000 a year and could end up double that number.

Rob Law, who served as chief of USCIS’s Office of Policy in the Trump administration, said that is a tacit admission that the government realizes it is inviting a new wave of border-jumpers, who will try to make asylum claims. And more are likely to succeed because asylum officers tend to be more lenient toward illegal immigrants than immigration judges, he said.

“They seem to view themselves as the champion of the alien as opposed to adjudicators of the law,” he said.

The new Biden plan is just a notice of proposed rule-making at this point. It needs to go through the regulatory comment period before being finalized. The administration could, in theory, scrap the entire initiative, depending on those comments.

But USCIS plowed ahead.

New Director Ur Jaddou sent an email to employees Wednesday, just hours after the regulatory filing, saying the agency is moving ahead on “the first phase of hiring.”

“This new process will significantly increase and change our workload,” she wrote. “We are planning for growth of the Asylum Division’s workforce and, as a result, we will soon be posting vacancy announcements for new positions in Asylum Division headquarters and in asylum offices throughout the United States.”

Mr. Law said that email likely broke the law by signaling the agency was already staffing up for a program that hadn’t even been published in the Federal Register, much less survived the notice and comment period required by the Administrative Procedure Act.

“Ur Jaddou jumped the gun,” he said. “This just goes to show that the conclusion is predetermined. They do not care what the public input is. They’re already intent on going forward.”

Mr. Law said the new program, if finalized, would warp the agency’s finances. The Biden team has already said it wants to reduce the price of other immigration applications such as citizenship, which means those savings — as well as the new asylum cases filed by illegal border jumpers — would be born by other immigrants paying USCIS.

The other option would be to ditch the fee model and ask taxpayers to pay for immigrants.

The Biden administration has signaled the first step along that path, asking Congress for hundreds of millions of dollars in taxpayer money to cut into an existing case backlog. USCIS, in a statement to The Washington Times, linked that money to the asylum plans.

“If the rule is finalized, USCIS would scale the work assignments for asylum officers and supervisory asylum officers as needed based on case volumes and capacity for its existing workload and its new workload under the rule. In addition, the President’s Budget for the fiscal year 2022 that was recently submitted to Congress requests additional funds to address backlogs for immigration benefits,” the agency said.

The proposal calls for a phased implementation, which the agency said would allow hiring and spending to be calibrated to the resources the agency has on hand.

During the early going, most asylum-seekers will still end up in the immigration courts for their initial decisions, USCIS said.

Mr. Law said he can’t see how the agency will be able to hire and train the thousands of qualified asylum officers it expects to need in the time frame USCIS envisions. The agency’s other option, then, will be to pull current staffers off other cases, delaying those applications.

“They don’t have the manpower to handle it, and they don’t have the financing to handle it,” he said.

USCIS says something must change.

The number of asylum seekers at the border surged over the last decade, creating a 600,000-case asylum backlog in the immigration courts. The agency said that delays rulings for the small number that end up having valid claims and also prolongs the time in the U.S. for those who will eventually lose their cases.

Under the new proposal, USCIS says it can cut decisions from a years-long process down to months.

Border jumpers whom USCIS rejects can still appeal to an immigration judge, though, meaning some cases will likely last even longer.