Rashail Wasim

The United States has been a place of refuge since its genesis as a collection of colonies on the East Coast, and to this day, people throughout the nation are descended from those who fled oppression, whether it was due to race, religion, or ethnicity. Asylum seekers today still choose to come to these shores rather than those of any other country, but America is ill-prepared to process their claims. The current asylum system is in crisis, and only a complete overhaul can address the institutional problems that keep asylum seekers in limbo for years.

There are two principal ways of claiming asylum, the first being an affirmative asylum claim. Anyone within the United States can make this claim within one year of arrival, whether the person is here legally or illegally. The claim is processed in the U.S. Citizenship and Immigration Services (USCIS) Asylum Division, part of the Department of Homeland Security. Currently, there is a backlog of 318,000 claims, so wait times to approve applications average around four years. Asylum officers meet with the applicants for a credible fear interview to see if they were being persecuted in their home countries due to “race, religion, nationality, membership in a particular social group, or political opinion.” Seeking better job or education opportunities is not grounds for asylum. It is then up to a single asylum officer to determine whether an applicant is eligible for asylum, or if he or she is to be placed in removal proceedings. 

Deportation proceedings take place in front of an immigration judge who is part of the Executive Office for Immigration Review (EOIR), a branch of the Department of Justice. These courts are not independent in the slightest, with the Attorney General having the power to overturn any ruling he pleases. It is at these hearings that unauthorized immigrants can apply for asylum the second way, through the defensive asylum process. In this process, the immigration judge decides if applicants meet the standard for asylum, and if they do not, they are deported. 

This process has countless flaws, the first of which is the backlog. There are only 350 immigration judges in the country, responsible for more than 730,000 pending deportation cases. People have to wait an average of two years to find out if they will be forced to leave the United States. Many asylum seekers are also unprepared to go through this process due to the lack of an attorney, or the means to hire one. Unlike criminal courts, which are run through the Judicial branch, immigration courts are run through the Executive branch, and therefore are not required to provide attorneys for defendants. Those who cannot afford an attorney are deported 90% of the time, while those with attorneys have a 50% deportation rate. Deportation rates also vary widely among judges, with some deporting 97% of asylum seekers, and some deporting as few as 10%, which raises the question of what biases factor into the judges’ decisions.

The Trump administration has exacerbated many of these issues, making it even harder for asylum seekers to be approved. There is no quota for asylum as there is for the refugee program, so the President has been unable to restrict the number of claims, in the same manner, he has with refugees. However, he has been able to appoint more than 40% of immigration judges during his tenure in office, of whom around half were previously ICE employees. The ideological shift of the court has led to 65% of defensive claims being denied in 2018, up from 55% in 2016. The Department of Justice has also issued guidelines that prevent victims of gang or domestic violence from being eligible for asylum. Although these guidelines are currently being fought in court, in the meantime they greatly impacted who is eligible for asylum.

The current asylum system is opaque and stacked against the people it is supposed to benefit. The unaccountable asylum officers and immigration judges running the system create huge potential for abuse. With hundreds of thousands of cases, and few people to manage them, no one knows how many claims have been discarded and peoples’ lives destroyed due to bureaucratic fumbling. Eliminating the immigration backlog, forcing more transparency in deportation decisions, and ensuring asylum seekers have adequate representation regardless of their wealth are only the first steps the country needs to take to be a welcoming place for those who are facing persecution.