Asylum Reform: If At First You Don’t Succeed, Add, Add Complexity

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

The Biden Administration has proposed a major reform to the U.S. asylum system. As always, here at Statutes of Liberty, we’re here to give you both sides of the question.

What’s the problem?

The problem has three parts:

1. The U.S. Immigration Courts have a backlog of 1.3 million (million!) cases, approximately half of which are asylum claims. There are approximately 500 immigration judges, so the backlog is 2,600 cases per judge. (You have to do some math to see how truly awful that is. Let’s assume that a case takes eight hours of work to adjudicate. That’s 20,800 hours of work, per judge, to clear the backlog. There are 2,000 work hours per year. So, with the current IJ corps and the current backlog, it will take ten years to get to zero… assuming that no new cases come in the door.)
2. Asylum applicants who seek asylum at the U.S. border are automatically referred to the U.S. Immigration Courts after passing a “credible fear interview.” This is a major source of input for new cases coming into the immigration courts.
3. The U.S. maintains a parallel asylum adjudication system outside the Immigration Courts at Asylum Offices, which are staffed by asylum officers rather than judges. The backlog at asylum offices is bad — quite bad — but it isn’t close to as bad as at the immigration courts.

What’s the solution?

Faced with this Brobdingnagian backlog, the Biden Administration has proposed a new regulation that will grant additional powers to asylum officers and shift some cases from the Immigration Courts to the Asylum Offices. The cases in question are border asylum claims only. People who enter the United States with a visa, and then request asylum, would see no changes.

Currently, asylum officers only have two choices: Grant asylum or refer the case to an immigration judge for review. Review by the immigration judge is what lawyers call de novo review. In plain English, the immigration judge does the entire case over again, from scratch, without relying on the prior work done by the asylum officer.

Under the new regulation, asylum officers would be empowered to do a fuller review of border cases and have more choices about how to dispose of cases. These super-officers would be able to grant asylum, grant withholding of removal, grant protection under the Convention Against Torture, or refer the cases to the immigration courts for further review. Although the proposed rule says that the immigration courts would review the cases de novo, the proposed rule also says that the courts would rule “based on the record of the hearing before the Asylum Office plus any additional, non-duplicative evidence presented to the court that is necessary to reach a reasoned decision.” Note that asylum officers are, generally, non-lawyers, and so immigration judges would be conducting, in effect, appellate review of quasi-judicial decisions crafted by laymen.

What would the practical effects of this process be?

Much depends on the details. For example, if immigration judges conduct only rubber-stamp review of asylum officers’ decisions, many applicants are likely to be denied asylum under U.S. law without the reasoned judicial review required, in our view, by the Constitution. On the other hand, if the immigration judges conduct full fact-finding in referred cases, it’s difficult to see how the change will ameliorate the backlog problem — it would simply postpone it by shunting border asylum claims into the asylum offices pre-referral to the immigration courts.

As always, we welcome any thoughts or comments and will do our best to respond.