Outmatched: The U.S. Asylum System Faces Record Demands
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Highlights
A record 3.2 million encounters of migrants at U.S. borders in fiscal year 2023 left the U.S. asylum system struggling to protect those eligible for protection or remove those who are not.
- The U.S. asylum backlog exceeded 2 million cases in FY 2023. While immigration courts completed a record 500,000 cases that year, more than 1 million new cases were added, leaving most applicants in limbo for years.
- The Biden administration’s Circumvention of Lawful Pathways asylum rule, in effect since May 2023, bars asylum for most migrants crossing between ports of entry. It has drawn legal challenges.
- Measures such as CBP One appointments, new Temporary Protected Status designations, and the creation of Safe Mobility Offices in Latin America have added legal options but fall far short of the scale needed to manage regional displacement.
- Adjudication shortfalls act as pull factors: migrants not removed within one year of arrival are rarely removed at all.
Known for its long tradition of providing refuge, the U.S. humanitarian protection system is under significant strain at a time of mass displacements globally, a backlog of 2 million asylum applications, and record arrivals of migrants seeking asylum at the U.S.-Mexico border. The Biden administration has turned to alternate pathways to provide temporary protection to some, while imposing restrictions to asylum.
Without a more efficient system and resources for adjudicating asylum cases and expanded lawful pathways to meet growing protection needs, the nation’s immigration courts and asylum offices will become increasingly overwhelmed and individuals in need of protection will not receive it in a timely manner. Yet U.S. immigration laws, written decades ago, remain stuck in the past and are no longer fit for purpose. With asylum a fraught political issue in the United States, as in other key destination countries, the U.S. Congress has been unable to set aside partisan and ideological differences to act.
This report examines the current state of the U.S. protection system, with a particular focus on recent changes the Biden administration has been making in asylum processes and temporary protections, as well as the challenges and lessons the U.S. experience may offer for other asylum systems and countries.
The report is one of five country case studies and a synthesis report in a comparative asylum project developed by the Clingendael Institute.
Table of Contents
1 Introduction
2 Background and Relevant Developments
3 International Legal Framework
A. International Treaties
B. Domestic Implementing Legislation: The Refugee Act of 1980
C. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act
D. Post-1996 Statutory Provisions
E. Regulations on Asylum Eligibility and Procedures
F. Case Law on Asylum
4 Border Management in Policy and Practice
A. Border Agencies
B. Reception Process
C. The Circumvention of Lawful Pathways Rule
5 Access and National Asylum Procedures
A. The U.S. Asylum System
B. Affirmative Asylum Application Process
C. Defensive Asylum Application Process and Appeals
D. Standards for Granting Asylum and Limitations on Access
E. Withholding of Removal and Protection Under the Convention Against Torture
F. Other Protections for Unauthorized Migrants Already in the United States
G. Legal Representation
6 Extraterritorial Access to Asylum
A. Refugee Resettlement Program and Humanitarian Parole Authority
B. Parole Programs for Certain Nationalities
C. Safe Mobility Offices
D. Central American Minors Program
7 Return in the Context of Migration Cooperation
A. International Agreements to Accept Returns
B. Statistics
C. Interdictions
8 Conclusion
About the U.S. Immigration Policy Program
The U.S. Immigration Policy Program provides analysis of U.S. immigration pathways, the impacts of enforcement and other policies, and the characteristics of immigrant populations.
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