May 9, 2019

Asylum: Current Law and Proposed Changes


  • President Trump recently announced his intention to place new restrictions on asylum seekers, including a prohibition on work permits for those who cross the border illegally and a fee for asylum applications.
  • His announcement does not immediately change underlying law or current Department of Homeland Security practice.
  • Under current law, and with current resources, it is very difficult to process asylum seekers in a way that is both fast and fair, leading to backlogs and potential fraud.

Driven by the noble goal of helping people who are fleeing persecution, U.S. asylum law has evolved into a messy, ad hoc mix of statutes, administration policies, and court orders. Amidst a massive upswing in asylum seekers, on April 29, President Trump issued a memo directing the acting secretary of homeland security to make a number of changes to the asylum process through regulation. These changes are generally aimed at deterring migrants who have a low probability of being granted asylum from crossing the border between ports of entry. However, deterring low-probability asylum seekers without hindering high-probability asylum seekers is difficult under current law. It is likely judicial review of the president’s actions will be sought which could result in a slowing or reversing of some or all of the contemplated actions.

Typical Defensive Asylum Process Today

Asylum Process

The Existing Asylum Process

Functionally, under U.S. law, asylum may be granted to someone who meets the international definition of “refugee” and is physically present in the United States. A refugee is defined as someone with a “well-founded fear of persecution” in their home country. The key difference between an asylum-seeker and a refugee is where they are located: a refugee is in their home country; an asylum-seeker is here in the United States.

The distinction is important because there is a cap on refugees, set by the president, but no cap on asylum seekers. The refugee cap was 110,000 in fiscal year 2017 before the administration cut it to 30,000 for fiscal year 2019, citing the need to shift resources to address the asylum backlog. As the administration shifted resources to prioritize asylum cases, the refugee case backlog has worsened.

Once migrants reach the United States, if they have a valid visa they can enter the country legally and apply for asylum affirmatively within a year of arrival. However, in the present asylum surge, migrants rarely have the necessary visa or documentation to enter the country. The migrants then face a decision: present themselves at a port of entry; or illegally cross outside a port of entry. In either case, they are placed in the removal process and entered into the asylum process as a defense to removal.

Practically, migrants choose to cross illegally for a variety of reasons. In some cases, U.S. Customs and Border Protection has managed the flow of migrants through “metering,” only letting in a certain number of asylum-seekers each day at ports of entry. If they cannot seek asylum in a timely manner at a port of entry, as some migrants have claimed, they may decide to cross illegally. Other migrants have said they simply did not know they could seek asylum at the ports, an ignorance likely exacerbated by rumors or lies from smugglers.

Current Immigration Court Backlog

Asylum Backlog

Once apprehended, a migrant who claims they are afraid to return to their home country must undergo a “credible fear” interview with an asylum officer, which should occur within two weeks of apprehension. Credible fear of persecution means there is a significant possibility that the migrant could establish eligibility for asylum. It is generally viewed as a low bar, requiring only that the migrant show a “significant possibility” that they could qualify for asylum. If they meet the credible fear threshold, their asylum claim is referred to an immigration judge for a hearing on the merits. If they do not meet that threshold, they can appeal the determination to an immigration judge.

Today the backlog stands at 869,000 immigration cases being handled by about 400 immigration judges. That equals about 2,000 backlogged cases per judge, which would take approximately two years to clear. While awaiting a hearing, an asylum seeker can apply for and obtain a work permit after 180 days with no initial decision on the application. The process takes so long that at least some migrants clear the credible fear interview and abandon the process, ultimately attempting to remain in the country illegally.

In 2018, U.S. Citizenship and Immigration Services began scheduling recent asylum applicants before older ones – i.e., last in, first out – so that fewer asylum seekers could get work permits. The “clock” on the 180 days is frozen if the asylum seeker misses fingerprinting sessions or fails to produce evidence requested by USCIS.

Asylum seeker attendance for court hearings is typically high – 89 percent in fiscal year 2017. Once an immigration judge hears the case, there can be vast differences from judge to judge on granting asylum. According to data compiled by researchers at Syracuse University, in 2016 denial rates among 21 judges in San Francisco ranged from 9.4 percent to 97.1 percent. GAO found in another 2016 report that asylum grant rates would vary by about 50 percent for the same representative applicant whose case was heard by different judges.

If credible fear was found initially but the judge rules against the asylum seeker, the decision can be appealed to the Board of Immigration Appeals and then to a U.S. circuit court. This process goes much faster because it is generally a “paper review” – no new evidence is admitted. Work permits are typically extended while the appeal process is ongoing, but the removal process continues if the BIA rules against the appeal.

The Proposed Changes

President Trump’s memo proposing changes to the asylum process describes “rampant abuse” and “strategic exploitation” of the asylum process. The administration says that many migrants who are facing economic hardship instead of “persecution” claim asylum, clear the credible fear threshold, and then stay in the country and get a work permit for the roughly 1.5 years that their claim is pending, even if they know they will not qualify for asylum ultimately.

To address this, President Trump’s memo directs DHS to issue regulations within 90 days that make several changes to the asylum process. First, asylum seekers would be required to pay a fee not to exceed the costs of adjudicating the application. Second, asylum seekers who entered the United States unlawfully – defensive asylum seekers – would be barred from receiving employment authorization before their asylum application has been granted. Third, the president directed DHS to reassign immigration officers as needed to improve the process. DHS is reportedly considering using CBP enforcement agents to conduct credible fear interviews instead of asylum officers from USCIS.

The memo does not directly change asylum law. DHS will issue the relevant regulations, which likely will be subject to lawsuits and judicial review.

Last December, the U.S. District Court for the District of Columbia overturned a new Justice Department policy under which domestic violence or gang violence would not qualify as persecution for purposes of credible fear determinations.

Litigation is ongoing in another case challenging the administration’s plan to temporarily send some asylum seekers back to Mexico while they await their date with an immigration judge. More than 1,000 asylum seekers have been sent back to Mexico, though some have since returned. A federal district court ruled against the practice, and the 9th U.S. Circuit Court of Appeals is still considering that case. However, the 9th Circuit issued a stay on May 7 allowing DHS to continue the practice while the case continues.

Issue Tag: Judiciary