The U.S. Asylum System and Asylum Loopholes
By Pawel Styma | June 2021 | Click here to view the full version of The U.S. Asylum System and Asylum Loopholes (PDF)
While the United States is committed to being a safe haven for foreign individuals who have been persecuted in their own countries, the current system is riddled with loopholes making it ripe for abuse. Many of the migrant arrivals at the Southwest border are seeking to escape severe poverty, domestic abuse, and gang violence in their native countries. However, most are simply “economic migrants” who are seeking more favorable employment opportunities. Although the COVID-19 pandemic has exacerbated these issues, none of those claims meet the standard of “credible fear” necessary to be eligible for asylum.
Unfortunately, a growing number of asylum seekers are coached regarding what they need to say in order to get a foot beyond the first asylum hearing. As a result, many individuals claim “credible fear” of persecution in the hopes of being released or allowed to remain in the U.S.
This is problematic because:
- Improper claims clog the system and deny legitimate asylum seekers a swift adjudication of their claims;
- The U.S. government must devote valuable resources to the care, shelter and processing of large numbers of people who likely will not be ruled eligible for asylum or similar protections;
- Asylum loopholes are incentives for human traffickers and asylum seekers to engage in illegal activity and put the lives or migrants and U.S. Customs and Border Protection (CBP) agents at risk too.
The belief among migrants that they could gain asylum by sticking to crafted responses – or that invoking poverty, domestic abuse or gang violence were sufficient to gain asylum – helped create the humanitarian and security crisis at the southern border in 2019. The Trump administration mitigated the crisis by adopting several FAIR-supported policies that eventually helped reduce illegal migration and asylum abuse. Sadly, the administration of Joe Biden moved to immediately reverse almost all immigration-related policy reforms of the previous administration, including those seeking to curb asylum fraud. Predictably, this resulted in a massive increase in illegal migration and a humanitarian crisis at our southwestern border in early 2021 – a crisis that is ongoing, and growing, as of this writing.
The purpose of asylum is to offer protection to individuals who have either suffered, or have a “credible fear” of suffering persecution, on the basis of race, religion, nationality, membership in a particular social group, or political opinion in their country of residence. The present understanding of asylum is rooted in the World War II era, when millions of people were attempting to flee Nazi Germany, and subsequently in the post-war age of Soviet communist oppression.
U.S. law (8 U.S.C. § 1158) states that “any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum.”
Aliens seeking asylum must apply within one year of arriving in the U.S. and they cannot have been convicted of a serious crime or engaged in persecution themselves. The statute makes an exception “if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement,” to a safe third country. The process begins with an interview with an asylum officer (AO) during which “credible fear” is established. If an AO determines “credible fear” exists, then the claim is referred to an immigration court. An alien who is not found to have a credible fear of persecution will be processed for removal by U.S. Immigration and Customs Enforcement (ICE) but may request review of that determination by an Immigration Judge (IJ). If the alien does not request review by an IJ, or the IJ also determines that the alien does not have a legitimate credible fear claim, he/she will be removed from the U.S.
To put the 2019 crisis in perspective, consider that between Fiscal Years (FY) 2013 and 2019, 1.2 million people have come in through the southern border either as an unaccompanied child or as part of a family unit. Despite those numbers, only a tiny minority is ever deported. For example, of Central American migrants who arrived in FY 2017 as part of a family unit, only 12,021 – about 1.5 percent – had been removed as of September 2018. That is all the incentive needed for thousands to risk their lives every day to get to the border to make a claim.
The best estimate presently is that only about 15 percent of Central American asylum-seekers between 2014 and 2019 actually had a valid asylum claim.
In FY 2019 alone, according to the DHS Yearbook of Immigration Statistics, the U.S. granted asylum to 46,500 people – the highest number in three decades. But while the absolute number of asylum petitions granted has gone up, which may be viewed as reflecting a greater demand for asylum, so has the percentage of denials. In fact, there were more than 307,000 applications for asylum in FY 2019 alone.
Offering asylum to people who are genuinely persecuted is a wise policy that affirms America’s commitment to welcoming the persecuted. However, asylum loopholes and a misinterpretation of our immigration laws continue to incentivize asylum fraud and abuse.
For example, during the Obama administration, activist, progressive judges in the Immigration Court and the federal district and appellate courts began construing the asylum statutes in a manner never intended by Congress by attempting to broaden the grounds for asylum to include domestic violence and gang crime as forms of persecution. In 2014, the Board of Immigration Appeals (BIA) – the highest administrative body for interpreting and applying immigration laws – decided, in the Matter of A-R-C-G, that “married women in Guatemala who are unable to leave their relationship” are a particular social group, and therefore qualify for asylum. According to a Congressional Research Service report, “Following Matter of A-R-C-G, subsequent BIA decisions interpreted that ruling to mean that most Central American domestic violence victims fall within the definition of a particular social group.” In addition, “a few courts have held that aliens subject to gang violence were eligible for asylum because they established a nexus between the alleged harm and their membership in a cognizable particular social group, such as ‘witnesses who testify against gang members.’”
Not surprisingly, the number of Southwest Border alien encounters resulting in fear claims almost doubled between 2014 and 2019, rising from 60,000 to 115,000. According to a report by the Department of Homeland Security Office of Immigration Statistics, “Overall, 520,000 Southwest Border encounters resulted in fear claims between 2014 and 2019, 15 percent of all Southwest Border encounters during this period.” This contributed to a backlog of over 1 million cases in immigration courts by 2019, a number that reached 1.3 million in 2021 (of which 72 percent are from the Northern Triangle or Mexico).
To counteract asylum abuse, the Trump administration acted to restore the original meaning of asylum. In June 2018, in the Matter of A-B, then Attorney General Jeff Sessions overruled the Matter of A-R-C-G, arguing that the BIA had wrongly “recognized an expansive new category of particular social groups based on private violence.” Sessions decided that “generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” pointing out that “the asylum statute does not provide redress for all misfortune.”
As described by the San Francisco Chronicle in August 2020, “at least two other appeals courts have criticized Sessions’ edict, two have endorsed it, and it remains in effect — in a seemingly watered-down version (…).”
According to DHS, a statistically significant proportion of asylum claims are fraudulent, but this is nothing new. During a 2012 investigation into New York asylum mills, federal prosecutors arrested 30 immigration lawyers, paralegals and interpreters who had assisted asylum-seekers in filing bogus applications. Even today, some migrants are coached about what to say and not to say when claiming asylum.
Why are false claims a problem? In June 2019, according to former Acting DHS Secretary Kevin McAleenan, who was referring to 7,000 migrants in an expedited docket pilot program, as many as 90 percent of asylum-seekers fail to show up for their follow-up hearings. Instead, they simply disappear into the American interior, thus adding to the 14.5 million illegal aliens already in the United States.
To help stem the 2019 border crisis – during which U.S. Customs and Border Protection recorded almost 1 million illegal border crossers and inadmissibles (for FY2019) at the Southwest border– the Trump administration implemented several FAIR-supported policies. These included:
- Attempting to close the Flores loophole. To this end, on August 21, 2019, the administration announced a final rule paving the way for the termination of Flores that waives the current 20-day limit on detaining families with children. Unfortunately, the rule was never finalized because President Trump’s term ended.
- Implementing an interim final rule on July 15, 2019 making potential asylum-seekers who pass through a “safe” third country ineligible for asylum in the United States. After bouncing around the lower courts, the Supreme Court temporarily allowed the administration to enforce the “safe third country” rule in September of that year.
- The Trump administration also signed Asylum Cooperative Agreements (ACAs) with Guatemala in July and El Salvador and Honduras in September 2019, which would “allow migrants to seek protection within the region.”
- The Migrant Protection Protocols (MPP), often referred to as simply the “Remain in Mexico” policy. Implemented in January 2019, the policy sought to reduce illegal migration and accompanying asylum fraud by requiring asylum seekers attempting to enter through Mexico to await in that country as their cases were being processed. After a legal battle, the U.S. Supreme Court allowed the Trump administration to continue enforcing the MPP as litigation continued.
- The policy of “catch and release” – i.e., releasing illegal migrants into the U.S. interior as they await their court dates – incentivized illegal migration and asylum fraud. That is why, in late September 2019, Kevin McAleenan announced that “with some humanitarian and medical exceptions, DHS will no longer be releasing family units from Border Patrol Stations into the interior.” A DHS press release stated that “if migrant family units do not claim fear of return, they will be quickly returned to their country of origin, in close collaboration with Central American countries. If they do claim fear, they will generally be returned to Mexico under the Migrant Protection Protocols (MPP).”
- The Trump administration also significantly increased – by more than 80 percent – the number of immigration judges, from 289 IJs serving in FY 2016 to 529 as of January 2021.
During the peak of the 2019 border crisis, FAIR proposed the following solutions:
- Closing the biggest loophole – the Flores agreement. The worthy intention of the 1997 Flores settlement was to ensure unaccompanied minors were treated humanely by requiring children to be released from custody within 20 days in favor of placement in foster families or other placements. However, it was expanded in 2015 by a court in California to include children traveling with their families. That change has driven the increasing number of migrant families seeking asylum, as well as the exploitation of children by traffickers. Congress must amend the Flores agreement.
- Sen. Lindsey Graham (R-SC) introduced a bill in May 2019 which addresses some of these problems by allowing for unaccompanied Central American minors to be removed to their countries of origin (which is what currently happens to unaccompanied minors from Mexico and Canada).
- Requiring asylum seekers to apply for asylum in the first “safe” country they enter, rather than “country shopping” or embarking on long and dangerous journeys all the way to the United States.
- Lastly, Congress must ensure that funding for more immigration judges is made available immediately and work with agencies to streamline the hiring process.
During the 2019 migrant crisis, the number of Southwest border encounters (apprehensions and inadmissibles) peaked at 144,000 in May of that year. These numbers sharply declined during the second half of 2019 and remained relative low – both due to Trump policies, and, later, also because of the COVID-19 pandemic – for most of 2020. The numbers began climbing again in the fall of 2020, at least in large part due to Joe Biden’s pro-migration, pro-amnesty rhetoric, and the expectations that he would defeat Donald Trump. Biden’s November election victory only reinforced that trend, but the sharp increases in illegal migration came after Biden was sworn into office, with over 100,000 Southwest border encounters in February 2021,172,000 in March, and 178,000 in April. According to Axios, there were also “more than 170,000 apprehensions” in May. This represented historically high monthly numbers and surpassed even the peak of the 2019 border crisis. A Border Patrol official told reporters that he “fully expects” to encounter over 1 million migrants at the Southwest border this year, and, according to “internal government estimates,” that number may even exceed 2 million.
Joe Biden created a self-inflicted border crisis by overturning the previous administration’s policies, including ones aimed at tackling mass asylum fraud. These include:
- Terminating “safe third country” ACAs with the Northern Triangle nations of Guatemala, El Salvador, and Honduras. The Biden administration has since sought agreements with Mexico, Guatemala, and Honduras to stem illegal migration, but without “safe third country” arrangements. Moreover, on April 22, President Biden’s special envoy, Ricardo Zuniga, clarified that “we don’t have new agreements to announce” regarding border troop deployments.
- Ending the anti-asylum-shopping MPP policy. Once Joe Biden became the 46th President, DHS announced that, starting on January 21, new individuals would no longer be added to the program. The following month, the agency announced that, beginning on February 19, it will start implementing phase one of a program to begin processing the approximately 25,000 individuals who had been required to remain in Mexico under MPP. On June 1, 2021, the Biden administration announced its official withdrawal from the MPP.
- Reinstating the failed “catch and release” policy. A February 2 executive order rescinded a 2018 Trump presidential memorandum ending “catch and release.” Moreover, illegal migrants have also been released without even the formality of a court date, a completely unprecedented move.
- The above executive order also directs the Attorney General and the Secretary of Homeland Security to “within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a ‘particular social group.’” It is likely that the Biden administration wishes to return to the Obama-era broadened definition of asylum-eligible “particular social group” to include victims of domestic or gang violence. Both of those are admittedly terrible social pathologies, but such a move would also create more fertile ground for mass asylum abuse.
So far, the thrust of Biden administration policies on asylum has been to reopen asylum loopholes – which the Trump administration worked to close – and to generate greater potential for asylum fraud by people who are essentially economic migrants. However, if the Biden-Harris administration wishes to get a handle on asylum abuse, the solution is simple: reverse course and reinstate effective measures put in place by the previous administration.