Biden Administration’s Policies Cause the Affirmative Asylum Backlog to Double in Just Two Years
The Office of the Citizenship and Immigration Services (USCIS) Ombudsman reported recently that USCIS’s affirmative asylum backlog has grown to 842,000 cases, doubling in just two years, with application processing times now “likely approaching a decade”. This portfolio has grown at a record-setting pace in large part due to new policies put forth by the U.S. Department of Homeland Security (DHS) and the U.S. Department of Justice (DOJ) under the Biden administration and the diversion of Asylum Division resources to address credible fear claims made the Southern border.
The affirmative asylum process refers to asylum applications that have been submitted to USCIS proactively for adjudication rather than as a defense to removal (i.e. deportation) from the United States in expedited removal proceedings or immigration court. Generally, this portfolio does not include asylum claims made by recent border-crossers, who typically submit asylum claims defensively, but does include claims submitted by (or on behalf of) unaccompanied alien minors. When combining the number of affirmative and defensive asylum cases, the total U.S. asylum backlog stands at approximately 1.6 million cases, the highest on record. This is a 16-fold increase from FY 2012, when the U.S. government reported just 100,000 pending cases.
The affirmative asylum docket (and corresponding processing time estimates) have grown calamitously since President Biden took office. At the end of FY 2020 (September 30, 2020), about four months before the change in administrations, the affirmative asylum backlog stood at 336,053 pending cases. By December 31, 2021, the USCIS asylum backlog climbed to 438,500 pending cases, and by December 31, 2022, just one year later, the agency logged 667,040 pending cases (a 57 percent increase from the year prior and a 98.3 percent increase from September 30, 2020).
While the most recent reporting indicates that the affirmative asylum backlog stands at approximately 842,000 pending cases, USCIS projects the affirmative backlog will exceed one million cases by the end of calendar year 2024. The USCIS Ombudsman also alarmingly reported that USCIS failed to provide their office any estimates on processing time reduction efforts related to Form I-589, Application for Asylum and for Withholding of Removal, this year, and was forced to estimate that processing times are “likely now approaching a decade” given current pending case numbers.
There are a handful Biden administration policies to blame for the drastic increase in pending cases and processing times. First, officials in the USCIS Asylum Division have blamed DHS’s mass-dismissals of removal proceedings in immigration court pursuant to an U.S. Immigration and Customs (ICE) Office of the Principal Legal Advisor (OPLA) memorandum, known as the Doyle memo (after Principal Legal Advisor Kerry Doyle), for the increase of their workload. The administration’s expansive use of prosecutorial discretion to cancel large numbers of immigration court cases has resulted in the transfer of asylum claims to USCIS that would have ordinarily been considered by an immigration judge.
As my colleague Andrew Arthur has explained, “The Doyle memo was, essentially, a directive to ICE attorneys to tank cases that did not fit within an earlier memo, issued by DHS Secretary Alejandro Mayorkas and captioned ‘Guidelines for the Enforcement of Civil Immigration Law.’” Arthur further explained that these guidelines “‘prioritize’ three classes of aliens for enforcement action: spies and terrorists (threats to national security); aliens who entered illegally on or after November 1, 2020 (threats to border security); and aliens convicted of ‘serious criminal conduct’ (threats to public safety)”. Arthur explained that, “Mayorkas’s memo requires immigration authorities to consider so-called ‘aggravating’ and ‘mitigating’ factors that ‘militate’ in favor of or against (respectively) the taking of enforcement action.” Under Mayorkas’ guidelines, a large percentage of removable aliens are shielded from the enforcement of immigration law.
The Doyle memo, however, went further to use this guidance as a basis to strongly encourage (i.e. require) ICE prosecutors to dismiss cases that do not fall under Mayorkas’ enforcement priorities, regardless of their immigration status or lack thereof. The memo went as far as to require an ICE chief counsel to approve every determination that a noncitizen poses a threat to national security or public safety. Conversely, the memo stated that a determination that a case “does not appear to constitute an enforcement priority (i.e., not a national security or public safety threat) or that a noncitizen poses a threat to border security based solely on their date of unlawful entry or attempted unlawful entry into the United States requires no further management review” (emphasis added), signaling that DHS leadership is more concerned about a removable alien being put into removal proceedings than an ICE prosecutor potentially missing a national security or public safety threat and allowing such a person to remain in the country illegally.
Second, the Biden administration’s massive expansion of parole has also caused USCIS’s affirmative asylum docket to swell. The creation of numerous parole programs, such as Operation Allies Welcome; Uniting for Ukraine; and parole programs for nationals from Cuba, Haiti, Nicaragua, and Venezuela, has allowed 266,637 inadmissible aliens to enter, remain, and work in the United States without lawful immigration status as of March 1, 2023. This number does not include inadmissible aliens who have been paroled into the country under the Biden administration’s expanded Central American Minors program, aliens who are in expedited removal proceedings but have been paroled out of mandatory detention, or those under any preexisting parole program, such as the Cuban Family Reunification Parole or Haitian Family Reunification Parole programs.
Because parole only provides temporary authorization to remain in the United States, aliens who have been granted parole under one of these new programs and who wish to receive asylum (a permanent form of protection) in the United States must file their claims affirmatively with USCIS. Even the USCIS Ombudsman, in its 2023 report, specifically acknowledged that the creation of the programs has resulted in higher volumes of affirmative asylum filings and concluded that the USCIS Asylum Division “does not have the capacity for additional prioritization of asylum applications filed by all noncitizens paroled into the United States” under these new programs.
Furthermore, without the presence of aggravating factors, an alien paroled into the United States under these programs would be unlikely to meet DHS’s enforcement priorities and find themselves in removal proceedings. This is true even if their parole has expired and the alien remains in the country without any form of authorization or status. A pending asylum application, however, would allow individuals in such circumstance to remain and work in the country pending the adjudication of the application. With affirmative asylum application processing times nearing 10 years, the submission of an affirmative asylum application could provide a serious benefit to even those applicants with weak claims.
Third, the Biden administration’s asylum processing interim final rule is designed to transfer more asylum cases from DOJ’s jurisdiction to USCIS. The regulation, titled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers”, allows asylum officers to make final asylum decisions for claims submitted defensively in the credible fear process. A credible fear claim is a “fear of return” claim made by an alien who has been put into expedited removal proceedings. These generally encompass recent illegal border-crossers who have been encountered by a U.S. Customs and Border Protection officer in the border region. While USCIS has only piloted implementation of this new process and has since paused implementation, citing resource constraints during the lifting of the Title 42 public health order, this regulation has the potential to further drain resources from USCIS’s Asylum Division.
USCIS expects this regulation to be so resource intensive, in fact, that the agency has proposed charging a new $600 “Asylum Program Fee” on every petition filed by an employer seeking to hire a foreign worker in order in order to fund this new process, which USCIS estimated will cost the agency an average of $426 million annually in order to support over 2,000 new staff and associated general expenses. Under USCIS’s proposal, this fee would be in addition to all other fees employers must pay to the agency to adjudicate necessary forms.
Finally, the border crisis has stunted USCIS’s ability to process affirmative asylum cases. Since 2021, USCIS has been forced to surge resources to the U.S.-Mexico border, which has primarily involved transferring asylum officers who typically handle affirmative asylum cases to instead conduct credible fear screenings for recent border-crossers. Again, even the USCIS Ombudsman acknowledged that the “depletion of resources to the Southern border” has “continued to impact the affirmative caseload and the agency’s ability to chip away at it”. While the USCIS Ombudsman repeatedly referred to the border crisis as a circumstance outside of USCIS’s control, the Biden administration’s refusal to enforce immigration laws in the interior of the United States has been a documented, primary pull factor for mass illegal immigration.
