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E.g., 04/11/2021

Biden Administration Is Making Quick Progress on Asylum, but a Long, Complicated Road Lies Ahead

Commentaries
February 2021

Biden Administration Is Making Quick Progress on Asylum, but a Long, Complicated Road Lies Ahead

CBP_SanYsidro_smaller
Mani Albrecht/U.S. Customs and Border Protection

The Biden administration has begun admitting migrants enrolled in the Migrant Protection Protocols (MPP) to the United States to await decisions on their asylum applications, instead of keeping them stranded in northern Mexico. This most recent step in unwinding Trump administration policies at the U.S.-Mexico border follows the decision to end MPP, also known as Remain in Mexico, and to unravel other actions that blocked vulnerable populations, largely from Central America, from crossing the border in search of safety.

Other Trump policies that throttled nearly all asylum claims at the border have fallen recently. Among them: a court injunction blocking the transit-country asylum ban, which authorized the denial of asylum applications for migrants who had traveled through other countries to get to the border. The Biden administration halted two other programs—the Prompt Asylum Case Review (PACR) and the Humanitarian Asylum Review Program (HARP)—that permitted quick denial of most protection claims made at the southern border.

The new administration also is terminating Asylum Cooperation Agreements with El Salvador, Guatemala, and Honduras that allowed the U.S. government to deport asylum seekers to these countries to seek protection there. And it has announced ambitious plans to assist these countries and Mexico in tackling the deeper causes driving the migration of people desperate to escape endemic violence, corruption, and weak governance.

Despite the swift action, much remains to be done. The next steps will be less visible and take more time, but they are equally, if not more, important. They require reworking more technical Trump-era policy actions that denied asylum to nearly all claimants at the border and addressing longstanding breakdowns in the asylum adjudication system.

A further near-term challenge is what to do about a Trump-era public-health order mandating the expulsion of nearly all arrivals at the border. With COVID-19 concerns persisting, the Biden administration has said it will only gradually lift the federal Centers for Disease Control and Prevention (CDC) order and process new asylum seekers as it develops the capacity to do so. But it may find its hand forced by ongoing litigation, if a court orders an injunction blocking the CDC order.

Overhanging all this is the reality that the border soon could face a rise in new arrivals. Already, the number of arriving unaccompanied minors is taxing government shelter capacity that is necessarily winnowed as a result of the pandemic.

Revisiting Asylum Eligibility

Beyond restricting the ability to apply for asylum and making the application process more difficult, the Trump administration significantly narrowed the definitions of who might qualify for asylum.

For example, most arriving asylum seekers at the southern border undergo a preliminary screening (“credible- fear”) interview to determine if they have a “significant possibility” of establishing eligibility for asylum. Those who pass move on to the immigration court system, housed in the Justice Department, where immigration judges rule on the merits of their claims. The Trump administration twice raised the bar for these screenings, making them more difficult to pass.

The administration also upended decades of established precedent on asylum law through its use of the attorney general’s obscure but powerful legal authority to self-refer and review immigration court decisions. Attorneys general under President Trump issued more self-referrals than under any prior administration.

Among other things, these reviews aimed to significantly tighten the definition of asylum. Most notorious was Attorney General Jeff Sessions’ review in Matter of A-B-, which overruled a prior precedent decision that recognized circumstances in which domestic violence could be a basis for asylum. It further stated that victims of gang violence would generally not qualify for asylum. Given that gang and domestic violence are key reasons for protection cited by many Central American asylum seekers, this decision proved powerful.

Sessions’ successor, William Barr, issued a decision in Matter of L-E-A that severely limited the ability of asylum seekers to use their immediate family as the social group on which the persecution claim is based. And Barr’s successor, Acting Attorney General Jeffrey Rosen, issued a second review of Matter of A-B-, further limiting when applicants can qualify for asylum based on persecution by nongovernmental actors and mandating that the protected ground on which the asylum claim is based (such as political opinion or membership in a particular social group) must play such a central role that the persecution would not occur absent that ground. 

These decisions have significantly curtailed asylum—especially asylum based on membership in a particular social group, which forms the basis for the large share of claims made by Central Americans. The percentage of asylum cases granted by immigration courts fell from 43 percent in fiscal year (FY) 2016, to 26 percent in FY 2020. And according to the Center for Gender and Refugee Studies, the attorney general reviews have spurred uneven treatment of domestic and gang violence claims, with some judges denying all such cases.

In a February 2 executive order, President Joe Biden committed the Department of Homeland Security (DHS) and the Justice Department to issuing a regulation in nine months that defines “particular social group.” Regulatory reforms require longer timelines, and this one will address only some of the Trump-era departures from long-held legal standards.

How Cases Should Be Decided

To restore meaningful access to asylum and other forms of humanitarian protection—as well as uphold the integrity of the immigration enforcement system—the administration must address longstanding procedural breakdowns.

The asylum application process is riddled with inefficiencies that threaten both the due-process rights of asylum seekers and effective border management. Asylum officers from U.S. Citizenship and Immigration Services (USCIS) conduct the initial credible-fear interview. Those who pass have historically then been allowed into the United States to pursue their cases before an immigration judge.

But because of the massive backlog in the immigration court system—which now stands at an all-time high of nearly 1.3 million cases—adjudications that should take months take years. These long delays forestall protection for those eligible for asylum and serve as an incentive for those without valid claims to also seek asylum, further overburdening a system not designed for handling such large numbers of cases. A well-functioning system would discourage this invitation for misusing the asylum process.

As we have long argued, this breakdown could be significantly mitigated by authorizing asylum officers to decide not only credible fear but also the full merits of border asylum cases, thereby reducing the stream of cases being added to the courts’ overburdened dockets and shortening the time it takes to reach a decision. Asylum officers are highly trained professionals, charged with fully adjudicating similar claims that do not arise at the border. As a candidate, Biden endorsed this approach. Implementing it requires issuing a regulation, as well as close coordination and cooperation between border and asylum officials in DHS and immigration court administrators in the Justice Department.

An asylum system that is more timely must also be fair. To that end, the administration has called for initiatives that scale up representation for asylum seekers. Noncitizens appearing before the immigration courts are not entitled to legal counsel at government expense, and indeed, few find it elsewhere. Just 51 percent of foreign nationals have representation at some point during their immigration court proceedings. In asylum cases, representation is the single most important factor in determining case outcomes—asylum seekers are at least three times more likely to win relief when represented.

In quickly dismantling the most visible barriers to asylum at the southwest border, the Biden administration is off to a strong start. The challenge now is to fix the plane while flying it. That calls for creating a new reality of deciding asylum cases fairly but promptly and forestalling a humanitarian emergency at the border that could eclipse the administration’s plans for buttressing border control through both a more effective, humane asylum system and strong, proactive efforts to reduce the drivers of migration through regional migration management measures with neighboring countries.