The contentious debate about U.S. immigration policy has centered on asylum and questions about humanitarian protection.
Title 42, an emergency measure that was taken to protect the border between the United States and Mexico during the COVID-19 pandemic has partially suspended asylum processing. Some migrants are allowed to apply for asylum. Others don't even seek asylum. Not all asylum-seekers cross the southern border.
Although a federal judge has stopped the Biden administration's lifting of Title 42, the U.S. asylum system continues to face the same challenges it has for years, from a huge backlog of applicants and long processing times to inconsistencies and operational constraints.
This week, the Biden administration began enforcing a rule that it hopes will reform and speed up the processing of asylum cases. The policy will be implemented on a small scale, and its success is still uncertain due to operational difficulties, record migrant arrests, and Republican-led lawsuits.
Here are the facts about the U.S. asylum process and the challenges it faces.
The United States has been allowing the government to grant asylum to immigrant who have suffered persecution or are well-founded in fear in their home country due to their nationality, race or religion or their membership in a "particular socio group".
Persecuting must be from the government or from someone the country cannot or refuses to control. U.S. law does not allow for asylum because of poverty, economic hardship, displacement due to natural disasters, or the desire to reunite family members.
It uses the same legal threshold as asylum, but refugees are available to anyone who is not a U.S. citizen. On the other hand, asylum is only available for those who are on U.S. soil. Except for a few exceptions, U.S. law permits migrants to the U.S. to apply for asylum to stop their deportation.
There are two types: "defensive" or "affirmative" asylum requests.
To prevent deportation, migrants the government wants to deport can file defensive asylum requests. These cases are handled by immigration judges at Justice Department. They also supervise an appellate immigration court.
U.S. immigration officials can approve affirmative asylum applications for immigrants who have temporary legal status in the U.S. (e.g. short-term visa holders or unaccompanied children) who are not legally allowed to enter U.S. borders custody. Citizenship and Immigration Services (USCIS).
Migrants seeking defensive asylum must present their case in adversarial court proceedings that feature judges and government attorneys. However, affirmative applicants are interviewed by USCIS asylum officials.
Asylum seekers whose requests for asylum are denied by immigration judges may be deported. However, they have the right to appeal these decisions. Asylum seekers who are rejected by USCIS are usually placed in deportation proceedings. The immigration court system then makes a final decision.
Asylum granted by an immigration judge or USCIS to immigrants is a permanent right to remain in the United States. They can also apply for a green card within one year. They can also bring their children and spouses to the U.S. to live and work legally.
It depends. The U.S. border officers have used Title 42 public health authority for the past two years to expel migrants from Mexico or their home countries without giving them the opportunity to apply for asylum.
According to data from Department of Homeland Security (DHS), migrants have been expelled more than 1.9 million times since March 2020 when the Trump administration invoked Title 42.
Title 42 is not used to expel all migrants that cross the border into the United States. It is mostly only for single adults. For humanitarian reasons, the Biden administration has exempted some groups from Title 42, such as unaccompanied children, refugees from Ukraine, and asylum-seekers.
Other migrants are not expelled for different reasons. These include restrictions by Mexico on who can go there, operational challenges, and strained diplomatic relationships with countries such as Cuba, Nicaragua, and Venezuela, which restrict or ban U.S. expulsions.
Regular immigration procedures allow migrants to seek asylum. They are transferred to shelters, long-term detention facilities or released with a court order. Or, they are quickly deported from the southern border in an expedited removal process.
Only those placed in expedited removal proceedings can apply for asylum if they demonstrate credible fear of persecution during screenings at USCIS officers.
Liberals and conservatives both have claimed for years that the U.S. asylum program is broken. However, they have provided different solutions.
Conservatives claim that the asylum system is being misused by economic migrants, who use it to remain and work in the U.S. for indefinite periods. This encourages illegal immigration. Liberals also criticize the delay in deciding asylum cases. They claim that they leave legitimate asylum-seekers trapped in legal limbo for years.
It is undisputed that the government has a backlog of hundreds, if not thousands, of unresolved asylum cases. This has made it difficult to resolve cases quickly. The long-running processing delays were worsened by the COVID-19 pandemic which slowed down in-person court hearings as well as USCIS interviews.
Justice Department data shows that the immigration court system had 628 551 asylum applications pending at the beginning of 2022. The immigration court system currently has more than 1.6 million cases pending. According to agency statistics, USCIS was handling 432,341 unresolved asylum requests at the beginning of 2022.
USCIS currently has 750 asylum officers, while the Justice Department has 578 immigration judges. Although the Biden administration stated that it intends to hire more immigration judges and asylum officers in the future, the process of hiring is slow.
According to a Syracuse University analysis of data from the TRAC program, immigrants have to wait on average 1,621 days (or more than 4 years) for an immigration court hearing because of the huge backlog. Agency data shows that while USCIS is committed to deciding affirmative asylum applications within six months, the majority of cases go beyond that deadline.
The government is able to grant as many asylum requests each year as it wishes, unlike refugee admissions which are limited by the president every fiscal year.
Fiscal year 2021 saw 7,359 asylum applications approved and 14,117 rejected by immigration judges. Justice Department figures show that 8,494 asylum requests were approved by judges in the first six months fiscal year 2022. Meanwhile, 9,738 were rejected.
Agency data shows that USCIS granted asylum 7118 times during fiscal year 2021 and rejected 17888 cases. The USCIS denied 9,727 asylum applications and approved 2,175 asylum requests in the first three months fiscal year 2022.
Since 2015, the overall asylum grant rate in immigration court has been around or below 20%. The rates have remained at or below 20% since 2015.
A 2020 DHS report revealed that 89% of Central American migrants who crossed the U.S.–Mexico border in fiscal years 2014 and 2019, remained unresolved.
Trump's administration restricted asylum eligibility through multiple regulations and international agreements. This allowed border officials to deport migrants quickly or to make them wait in Mexico to hear their cases.
Soon after his election, President Biden lifted some Trump asylum restrictions. These included the so-called "Remain in Mexico” program and deals that allowed America to reroute asylum seekers to Guatemala, Honduras, and El Salvador, with instructions to seek protection there.
However, the Biden administration kept Title 42 intact and defended it as a public policy for more than a year. Although it did make exceptions to the expulsions the Biden administration used Title 42 more frequently than the Trump administration. In its first 15 months, it executed over 1.4 million migrant expulsions.
The Trump policy of generally disqualifying victims of domestic and gang violence from seeking asylum was repealed by the Biden administration last year. It stated that it would issue regulations to clarify the "particular socio group" grounds for asylum, which has been in dispute for decades. This rule is still in development.
Conservatives propose reducing asylum eligibility, holding asylum-seekers in detention while their cases are being reviewed, and increasing deportations. Liberals advocate for linking asylum-seekers to lawyers, increasing the number of asylum officers, and speeding up case processing.
Biden's plan to reform asylum processing at the southern border is in line with this approach. This is a plan to speed up adjudications, by assigning USCIS officers who will decide asylum cases instead of directing all requests to backlogged immigration courts.
It remains to be seen if officials can hire enough asylum officers or allocate enough resources (including deportation flights) to allow the rule to accomplish its goal of providing more prompt asylum grants and denials. This rule could also be blocked by the courts.
Experts recognize that not all migrants crossing the border to the U.S. from Mexico seek asylum. They also suggest expanding legal immigration such as family-based visas and work-based visas to allow potential migrants to legally enter the country and reduce the pressure on the asylum system.
"Asylum will not solve all problems at the border. Many of these people want to go to work. Muzaffar Chishti is a senior fellow at The Migration Policy Institute. "If we need people in this nation to work, they should have the ability to come legally and should not compromise our asylum system," he said.
Chishti stated that the U.S. must find lasting solutions to the problems plaguing its asylum systems to ensure that it provides refuge for those fleeing persecution in compliance with U.S. law and international refugee laws.
Chishti stated that "our asylum system doesn’t serve anyone." It doesn't serve those who are entitled to it, because it doesn't give it for years and doesn't take people out of the country who don’t deserve it."