Biden Administration Announces Major Change to US Asylum Process
The Biden administration announced plans to change how asylum cases are processed today. The goal of the Biden administration is to move new asylum cases out of the immigration court system, which currently has over 1.7 million pending deportation cases of all types, and turn the responsibility over to asylum officers at USCIS who specialize in handling these types of cases.
Perhaps most importantly, this would take the initial asylum process out of an adversarial setting (i.e. with an ICE attorney essentially arguing against the applicant in front of a judge) and into a non-adversarial setting, where it’s just the asylum applicant and an adjudicator. From an immigrant rights perspective, this is a good thing, although the rule will undoubtedly face push-back from groups who (without basis) view asylum applicants as inherently fraudulent or terrorists.
The administration claims that this will speed up asylum cases to get a decision in just a few months rather than several years, which is currently the norm in the courts. I am somewhat skeptical of this claim. While it is true that asylum applications processed in a non-adversarial setting have much less staffing and overhead and so could conceivably respond more quickly to changes in the number of applicants over time, it remains to be seen how ready USCIS is to handle these cases. These cases could certainly move faster, but the idea that they will be done in a few months feels far-fetched to me.
Another note on speed. Speeding up asylum cases is not, in itself, a good thing if applicants don’t have time to get an attorney. TRAC’s analysis of asylum-seeking families on the Biden administration’s new dedicated docket found that many of them still don’t have representation after many months and many are being ordered deported. That’s not necessarily a better situation than waiting for three years if the wait itself helps to get a more fair hearing.
Let me give you my very short take on this. I think it’s generally a good thing. But, as with all immigration policy changes, there are two key things to keep in mind. First, changes to immigration law and policy often have ripple effects that are difficult to see at first glance, so don’t get too excited just yet. Second, my theoretical orientation towards law is one of law as a social and political practice, which means we cannot read the real effects of law until we see how it unfolds in the so-called “real world.” (And do keep in mind that we haven’t seen the final rule yet.)
The new proposed rule can be found here.
If you want to read more about this news, here are some options.
Eileen Sullivan from the New York Times wrote about this new rule this morning, including a quote from me about what this means for the asylum system.
“It very well could be one of the most significant reforms to the asylum system in a long time, going beyond undoing the Trump administration’s attempts to limit access to asylum, and actually institute meaningful structural reforms,” said Austin C. Kocher, a geographer at Syracuse University who analyzes immigration enforcement data.
Sandra Sanchez from Border Report wrote that:
“As the United States announced Thursday that it will accept 100,000 Ukrainian refugees, the Biden administration also announced sweeping changes to its asylum screening procedures, which should make it faster for those who have a credible fear of returning to their country to remain in America.”
Sandra also quoted my take on it here:
“The Biden administration’s forthcoming rule on asylum claims to take the asylum process out of an adversarial court setting would give it to asylum officers who specialize in evaluating asylum claims. Not only could this provide some relief to immigration judges who face enormous court backlogs, but it would also adhere more closely to the letter and spirit of the Refugee Convention,” Kocher said.
Priscilla Alvarez at CNN also wrote about the rule today, noting the impact this could have on the immigration court system, which currently has a large number of pending immigration cases.
“By shifting the adjudication of claims from immigration judges to asylum officers, officials hope cases will be completed in months, not years. There are 1.7 million cases pending in immigration court, according to Syracuse University's Transactional Records Access Clearinghouse, which tracks immigration court data.”
If you want a readable expert analysis, I can highly recommend the following thread by Aaron Reichlin-Melnick from the American Immigration Council.
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Don't they need to hire a bunch of people as asylum officers and what kind of people would apply for those jobs? It sounds good but also not so good... And not to be Negative Nelly but 100,000 Ukranians just walk past all the brown and black folks that have been waiting months and years?? Your thoughts??
Does this mean that those whose asylum claim isn't approved of by USCIS don't get a chance to appeal that decision and go before an immigration judge? Is it only a one shot process now?