On June 1, CBS News reported that a new “Trump administration plan would allow for quick asylum rejections without interviews”, according to what the network referred to as “internal documents”. Skip the headline and this story becomes a yawner because as CBS News explains, this “plan” would only apply to asylum claims filed more than a year after the applicant arrived here, which are already largely barred under the “asylum statute”, section 208 of the Immigration and Nationality Act (INA).
The “One-Year Bar”
Under section 208(a)(1) of the INA, aliens “physically present in the United States” or who arrive in this country (legally or otherwise) “may apply for asylum”.
As an aside, note that the Supreme Court is mulling over whether an alien who is on the threshold of, but who hasn’t passed into, the United States must be allowed to apply for asylum. Expect an opinion settling that question to come later this month.
Back to the main point, however, what Congress in the INA giveth, Congress in the INA may take away, and section 208(a)(2) of the INA, “Exceptions”, bars certain aliens from “applying for” asylum under section 208(a)(1).
The most common exception, at section 208(a)(2)(B) (“Time limit”), bars asylum applications filed by aliens who fail to “demonstrate[] by clear and convincing evidence” that their applications have been “filed within 1 year after the date of the alien’s arrival in the United States”, commonly known as the “one-year bar”.
To be clear, however, there is an exception to that “exception”, in section 208(a)(2)(D) of the INA.
It permits the filing of a late asylum application if the applicant can show either “changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within” that one-year period. Even that exception is seemingly covered under the new policy, however.
Affirmative vs. Defensive Asylum Applications
Aliens present in the United States can seek asylum from either an immigration judge (IJ) or a USCIS asylum officer (AO), depending on whether they are in removal proceedings or not.
AOs adjudicate “affirmative” asylum applications filed by aliens present in the United States, regardless of status, but only if they aren’t in removal proceedings before an IJ.
Those affirmative applications are adjudicated by AOs following “non-adversarial” interviews, during which the alien may have an attorney present, but at which there is no other DHS attorney to cross-examine the alien or present contrary or “impeachment” evidence undermining the claim.
And if the AO grants the application, there is no formal “appeals” process by which the grant could be challenged, though the AO’s supervisor (and possibly HQ components) may review it before it goes out.
If affirmative applications filed with USCIS are denied, and the applicants are out of status or entered illegally, AOs will “refer” their applications to the immigration court by placing them into removal proceedings, at which point IJs can again consider their claims as “defensive” asylum applications.
In those removal hearings, under section 240 of the INA, the “government” (i.e., you, the taxpayer) is represented by an ICE attorney who can examine the alien, submit additional evidence, and appeal an IJ asylum grant to a separate administrative tribunal — the Board of Immigration Appeals (BIA) — for review.
Other asylum applications filed by aliens in removal proceedings who never sought asylum from USCIS are considered “defensive”, as well, but while USCIS views applications (1) filed by aliens encountered by CBP at the borders and the ports and (2) subjected to “expedited removal” under section 235(b)(1) of the INA who (3) claim persecution or torture abroad and are found to have a “credible fear” and (4) are placed into removal proceedings as a third method for receiving asylum, they’re basically “defensive”, too.
The only “minor” exception to these rules is for unaccompanied alien children (UACs) encountered by DHS, placed into removal proceedings, and sent to the Department of Health and Human Services for placement with “sponsors” here (usually the kid’s parent or other family member).
By statute, those UACs can seek asylum from AOs at USCIS even while their removal proceedings are ongoing, and nothing suggests the proposed plan would apply to them.
The Purported “Plan”
Parsing through the (rather inexact) CBS News reporting, DHS is apparently considering a new regulation that would permit AOs to immediately deny asylum applications filed by aliens who have been present in this country for a year or more before seeking protection from USCIS — but even then AOs could apply the statutory “exceptions” to the one-year bar outlined above.
As per the outlet:
Under the regulation, [AOs] would be empowered to reject asylum applications, without adhering to the traditional practice of interviewing the applicants, if they find the cases were filed a year after their arrival to the U.S..
USCIS would place rejected applicants in deportation proceedings before the Justice Department's immigration court system, requiring them to plead their cases to remain in the country in an adversarial setting, the documents say.
...
The regulation outlined in the internal federal documents would allow USCIS officers to move forward with an asylum case and schedule an interview if they determine the applicants meet one of the exceptions for not filing their application within the 1-year deadline. [Emphasis added.]
But what if “the traditional practice of” requiring USCIS AOs to “interview[] the applicants” is a pointless, box-checking, time-wasting exercise that will inevitably result in a referral to removal proceedings anyway?
Burying the Lede
Read deeper, and you will see that’s the case under the current USCIS policy.
You must “read deeper” because CBS News “buries the lede”, that is, it places critical facts at the end of its article, in this case ones that detail the crushing backlog of asylum applications USCIS AOs are struggling — unsuccessfully — to dig themselves out of.
Here’s the first sentence in paragraph 16 (of 19) in that June 1 article: “USCIS, which oversees asylum cases filed by immigrants in the U.S. legally or who are not facing deportation, had 1.5 million pending asylum applications as of last fall, government figures show.”
Perhaps the outlet should be following my colleague Elizabeth Jacobs, who explained in early May that “USCIS currently faces a 1.45 million-case backlog in its affirmative asylum portfolio”, a slightly lower, more recent, and more accurate figure, but even then, one that only scratches the surface of the issue.
Let me explain.
USCIS is a “fee-based” agency, as it largely relies on fees that it charges for the applications it adjudicates (as opposed to tax revenue appropriated by Congress) to keep the lights on and its employees funded.
But the fee for filing an asylum application (Form I-589), $100 at the outset and $102 annually thereafter, is much, much (much) lower than the costs of adjudicating that application — and even too low to pay the salaries of the asylum officers who do the actual adjudicating.
Then there’s the fact that according to Government Executive, USCIS only had 824 AOs as of last May, and likely hasn’t hired many new ones in the interim. That means there are roughly 1,700 pending asylum applications per AO, making the backlog even more daunting.
Finally, there’s the fact that in FY 2023 (the last year for which statistics are available), USCIS AOs combined only adjudicated just over 46,000 affirmative asylum applications — meaning a USCIS AO backlog of 1.45 million I-589s is a de facto amnesty for illegal aliens with $102 to spend per year.
Put those facts together and you’ll see how sensible it is for DHS to allow AOs to skip interviews for aliens with late-filed I-589s they cannot grant, and to send them to IJs — who, even if they too cannot grant asylum under the one-year bar, could grant other forms of protection ( “statutory withholding” under section 241(b)(3) of the INA, and withholding under the Convention Against Torture) that are not subject to time-bars — instead.
One Fewer Bite at the Apple
Finally, CBS News quotes an immigration attorney who “expressed concern that the regulation would ‘wrongfully’ place applicants in deportation proceedings without allowing them to explain why they may have filed their application after the 1-year deadline”.
I will accept that attorney’s concerns at face value, but note that even if an alien with an I-589 that was filed more than a year after the alien’s arrival is “wrongfully” (if that’s the term) sent from the USCIS affirmative asylum system to IJ defensive asylum, the IJ must and will give the applicant the opportunity to explain why he or she “may have filed their application after the 1-year deadline”.
An IJ asylum grant is exactly the same as an AO asylum grant, as each puts beneficiaries on a path to a green card and citizenship, both provide grantees the same “means-tested benefits” (like food stamps and Medicaid), and both enable those aliens to file “derivative asylum” applications for their immediate family members.
The one thing asylum applicants would lose under this proposed scheme would be one additional “bite at the apple”, that is, one more opportunity to have their asylum applications considered, in this case by USCIS.
That said, even under this proposed rule, an alien with a late-filed application who is referred by USCIS to the immigration court could still appeal an IJ asylum denial to the BIA and, failing there, by filing a petition for review under section 242 of the INA with the local U.S. circuit court.
In other words, one fewer “bite at the apple” won’t keep an alien with a legitimate claim from being granted asylum, provided the application is timely filed or the alien has a good excuse for not filing it with one year of arrival — but it would spare USCIS the time and expense of considering a frivolous one.
Congressional Intent
Finally, this proposed change would advance Congress’s intentions when it created the one-year bar in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
As the conference report for an earlier version of that bill explained: “Asylum is often claimed by persons who have not suffered persecution, but who know that delays in adjudication (particularly in the affirmative asylum system) will allow them to remain in the United States indefinitely”. (Emphasis added.)
That’s the main reason the one-year bar and other IIRIRA amendments were added to section 208 of the INA, raising the question why it took USCIS (and its predecessors at the former INS) almost 30 years to allow AOs to skip pointless interviews and refer untimely filed asylum applications directly to the immigration courts, without first interviewing the aliens who filed them.
The real story in this article is that for nearly 30 years, asylum officers have conducted asylum interviews for untimely filed applications that are barred by statute, improperly delaying denials and allowing aliens to exploit our humanitarian system to extend their unlawful presence in this country indefinitely. If CBS News is correct, these abuses are coming to an end, and not a moment too soon.
https://cis.org/Arthur/BREAKING-New-Policy-Will-Require-Compliance-Law
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