A proposed reform is coming to the U.S. immigration system concerning asylum seekers.
The reform would allow asylum claims to be heard by lower raking administrators to ease the backlog of cases in the immigration courts. A Notice of Proposed Rulemaking was issued jointly by the Executive Office for Immigration Review (part of the Department of Justice), and U.S. Citizenship and Immigration Services (“USCIS”)(out of the Department of Homeland Security). The proposed rule, entitled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers,” seeks to remedy the current backlog of asylum claims.
Only roughly sixty percent of asylum applications filed since 2001 have been completed, meaning that over 660,000 cases are still pending. The wait for those pending cases has ballooned to nearly five years. The proposed rule would ease the administrative burden by allowing asylum officers within USCIS to initially adjudicate whether an applicant would be entitled to asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”). Individuals whose applications are denied by the asylum officer would be able to seek review of the decision by an immigration judge.
The backlog of asylum cases largely stems from a massive increase in asylum applications beginning in 2016. Between 2016-2020, over 450,000 cases were added to the backlog–an increase of 276%. The COVID-19 pandemic also caused all of USCIS’s asylum offices to close and prevented any asylum interviews from March 2020 through June 2020. USCIS states that the backlog is “the result of a prolonged, significant increase in affirmative asylum application filings and credible fear screenings . . . . ” It further states that “despite significant staffing increases . . . workloads outpaced the expansion of asylum office staffing and the establishment of new or expanded facilities . . . . ” USCIS also points out that it is a “largely a fee-funded agency” and that the “drop in new receipt filings [due to the COVID-19 pandemic] reduced revenue and resulted in a national hiring freeze.” Together, these conditions created a “perfect storm” that resulted in the immense increase in the backlog of immigration cases.
The proposed rule points out that the demographics of immigration has changed radically since the immigration and asylum system was put into place. “Since the mid-2010s, the demographic characteristics of noncitizens encountered at the border with Mexico . . . consist[s] mainly of nationals from the Northern Triangle countries of Central America (El Salvador, Guatemala, and Honduras) . . . including large numbers of families and unaccompanied children . . . . ” Fewer than a quarter of southwest border apprehensions in 2019 involved Mexican nationals. A decade earlier, Mexican nationals accounted for 92% of apprehensions. Most significantly, in 2019 a record high number of families were apprehended at the border – 56% of the total apprehensions were “family unit aliens.”
In July 2021, over 200,000 interactions occurred at the border. Of those, close to half involved families with children or unaccompanied children. A third of all pending immigration cases involve children, and 40% of those are toddlers under the age of 4. However, the DOJ/DHS proposed rule “would not apply to unaccompanied children.” The rule is intended to decrease the backlog of asylum cases by applying the rule “only to recently-arrived individuals who are subject to expedited removal–i.e., adults and families.” Unaccompanied minors are “statutorily exempt from being placed into expedited removal” proceedings, a process by which recently arrived immigrants who are not lawfully in the United States are deported by a low-level immigration officer with “virtually . . . unchecked authority.” So, although the rule does not allow children to be deported under expedited removal, neither does it do anything to help the newly arrived unaccompanied minors.
During the fiscal year 2021, 147,000 unaccompanied children presented themselves at the U.S.-Mexico border. The immigration system was woefully unprepared for the unprecedented amount of arrivals, and was forced to place children in “makeshift housing facilities that were not designed to house minors and lacked the standards of care enforced at traditional [Health and Human Services] shelters.”
USCIS’s new rule, once enacted, will be a useful tool in decreasing the immigration backlog that is causing undue delay for legal immigrants and asylum seekers across the country. However, there is still much work needed in order to update the immigration system to account for modern immigration patterns, including the increase in families and unaccompanied migrant children who are arriving at the border.
 Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,907 (Aug. 20, 2021).
 Id. at 46,906.
 Procedures for Credible Fear Screening and Consideration of Asylum, 86 Fed. Reg. at 46,907.
 Id. at 46,911.
 TRAC Immigration, supra note 4.
 TRAC Immigration, supra note 4.
 U.S. Citizenship and Immigration Services, Backlog Reduction of Pending Affirmative Asylum Cases, Dep’t Homeland Sec., at ii (Oct. 20, 2021), https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf.
 Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,908 (Aug. 20, 2021).
 Mike Guo, Immigration Enforcement Actions: 2019, Off. Immigr. Stats., Dep’t Homeland Sec. (Sept. 2020), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/enforcement_actions_2019.pdf.
 Mike LaSusa, Toddlers Make Up 40% of Kids’ Immigration Court Cases, Law360 (Mar. 17, 2022, 9:49 PM), https://www.law360.com/immigration/articles/1475083/toddlers-make-up-40-of-kids-immigration-court-cases.
 Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 Fed. Reg. 46,906, 46,910 (Aug. 20, 2021).
 Id. at 46,926.
 A Primer on Expedited Removal, Am. Immigr. Council (July 22, 2019), https://www.americanimmigrationcouncil.org/research/primer-expedited-removal.
 Camilo Montoya-Galvez, U.S. Shelters Received a Record 122,000 Unaccompanied Migrant Children in 2021, CBS News (Dec. 23, 2021, 9:15 AM), https://www.cbsnews.com/news/immigration-122000-unaccompanied-migrant-children-us-shelters-2021/.
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