Immigration - Part Two of Part One

The Background Explainer That Still Won't Make Anyone Mad (Part Two)

Today, asylum.

First, though a quick note:

On October 31, 1517, Martin Luther sent a letter to Albert of Brandenburg, Bishop of Mainz.  Enclosed were his Ninety-five Theses, or the Disputation on the Power and Efficacy of Indulgences.  A few years later, on May 25, 1521, following an imperial diet held in the Imperial Free City of Worms, Emperor Charles V of the Holy Roman Empire issued a formal edict—the Edict of Worms—condemning Luther as a “notorious heretic” and banning citizens of the Empire from propagating his ideas.

None of that has anything to do with the subject of this post—I just think Imperial Free City of Worms is the funniest name for a city I’ve ever heard (half-hearted apologies to the current residents of Worms, Germany—your city has a weird name).

A Quick Recap

Last week, we covered what it takes to move permanently and legally to the United States if you’re not already here—what it takes to get a permanent immigrant visa (a “PIV”).  

Important terms and characters:

• “INA” - Immigration and Nationality Act, first passed in 1952 and amended multiple times since, most notably by the Immigration and Nationality Act of 1965 and, for today’s purposes, the United States Refugee Act of 1980 (the “Refugee Act”).  The INA governs immigration into the United States.

• “USCIS” - U.S. Citizenship and Immigration Services, an agency of the Department of Homeland Security (“DHS”).  USCIS, along with Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”), is a successor to the Immigration and Naturalization Service.  USCIS, ICE, and CBP came into being in 2003 shortly after the creation of the DHS.

• “LPR” - lawful permanent resident, or green card holder.  

Under the INA, the US can grant up to 675,000 PIVs per year across various categories.

• 480,000 are allotted to family members of American citizens or LPRs.  Big caveat: no limitation to how many PIVs can be granted to immediate relatives—spouses, unmarried minor children, and parents—of US citizens.

• 140,000 go to employment-based immigrants and their family members.

• 55,000 are available to applicants from countries that have sent fewer than 50,000 immigrants to the US in the previous five years.  These visas are allocated randomly through a computer-generated lottery.

Once you receive a PIV, you can come to the US and receive your green card.  Most green card holders are eligible to apply for citizenship after five years in the US as an LPR.

A Quick Caveat

Before we get going again, please note that this is an abbreviated summary. The US immigration system is, like most other things that involve the government, really, really complicated. Today, we’re just going to give an overview of asylum, which means that we’re leaving parole, temporary visas, and more for next week. The reason asylum gets a full post is because of its outsized importance as we look at both legal and illegal immigration.

Oh—a Second Quick Caveat

Like last week’s Part One of Part One, this isn’t the most exciting post in the world. Again, we’re summarizing laws and legal processes. That said, if anything, I hope that this series will show you that fixing immigration, whatever “fixing” means, is going to require a serious, sustained, collaborative effort among members of both major parties.

Fasten Your Seatbelts - Getting Up to Speed on Asylum

Last week, we covered what it takes to come here permanently if you’re not already in the US.  This week, we’re covering asylum, which is a protection grantable to foreign nationals already in the United States or arriving at the border who meet the international law definition of a “refugee” as incorporated into the INA via the Refugee Act:

 “Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Adding a bit more to it from how US courts have interpreted the requirements, if you want to apply for asylum in the United States, you need to be a foreign national unwilling or unable to go home because:

• you have been persecuted or have a well-founded fear that you’ll be persecuted because of your (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or (5) political opinion; AND

• Your home country’s government is either doing the persecuting or unwilling to protect you from the persecution; AND

• There is nowhere in your home country you can go where you’d be safe.

The meanings of race, religion, nationality, and political opinion are fairly self-evident. A “particular social group” is generally understood as an identifiable group of people viewed by their government or the persecutor as a threat. People in a particular social group tend to have a similar background, social status, lineage, experiences, or habits. Particular social groups that have frequently been recognized by the US government include tribes or ethnic groups, child soldiers, LGBTQ individuals, or members or former members of the police or military (who might be targeted for assassination in a country that has recently had a coup, for example).

Are these standards applied uniformly by all asylum officers and immigration judges? Of course not, but that’s a discussion for another time.

There are two basic asylum processes: affirmative and defensive.

Path One - Affirmative Asylum

Affirmative asylum is available for foreign nationals who are not currently in removal proceedings and have been in the United States for less than a year.  Say, for example, that you come to the US from the faraway land of North Ferflunkenschlap on a temporary travel visa.  Your visa expires, but you don’t return home.  You’re staying in a large Ferflunken community in Cedar Rapids, Iowa, and haven’t been apprehended by ICE.

*Writer’s Note: North Ferflunkenschlap is a fictional country, and the “Ferflunken community of Cedar Rapids, Iowa” is not based any particular immigrant population that may or may not live in Cedar Rapids.

You can affirmatively apply for asylum by submitting an I-589 Application for Asylum and Withholding of Removal to USCIS.  The application is your place to describe the grounds on which you should receive asylum protection. Examples of people that have frequently been granted protection include Uyghur Muslims from China and LGBTQ individuals from countries that outlaw and severely punish same-sex romantic activity.

On the date the asylum office receives your application, the “asylum clock” begins to run.  After 150 days, you can file a work authorization application, which can be approved once the clock has been running for 180 days.  A work authorization permit based on a pending asylum application will last for five years before it needs to be removed. 

Affirmative asylum applications are evaluated by asylum officers employed by USCIS.  If the asylum officer approves your application following an interview, you will be granted asylee status, which gives you authority to get a social security card and begin working even without a work authorization permit.  After a year as an asylee, you can apply for a green card.

But what if your application is denied?  

Path Two - Defensive Asylum

If (i) you are apprehended by CBP or ICE or (ii) your affirmative application for asylum is denied by USCIS, you will be recommended for removal and sent to immigration courts administered by the Executive Office for Immigration Review, which is a sub-agency of the Department of Justice.  You can assert asylum as a defense to deportation (having initially applied for affirmative asylum gives you two bites at the apple—one with an asylum officer, one with an immigration judge).

The process typically affords you the same rights as with affirmative asylum—you can apply for work authorization once your application clock has been running for 150 days. However, under some circumstances, you may be held in a detention center while waiting for your hearing.

So, What’s the Issue?  Seems Like a More or Less Reasonable Process.  I’m Sure There Aren’t Any Major Complications.

Secure your feet against each side of your nearest doorframe and firmly grasp your buttcheeks.

There’s an Enormous Backlog and It’s Getting Enormouser

By late 2022, 1,565,966 people were waiting for asylum applications to be heard by an asylum officer or immigration judge.  They were split about evenly—778,084 waiting on USCIS, 787,882 waiting on a judge.  As of late 2023, those numbers were up to approximately 1.1 million pending in both spots, or 2.2 million total. 

There are approximately 760 asylum officers and 680 immigration judges.  Keep in mind that immigration judges adjudicate more than just asylum cases—as of November 2023, over 1.9 million other matters were pending before immigration judges, for over 3 million total, a full million higher than the total backlog a year earlier.

And how quickly is the government working through the backlog (and the frontlog, which continues to log at increasing rates)?

In fiscal year 2023 (October 2022 - September 2023), immigration judges made 72,413 final decisions on asylum cases.  That was a record!  

USCIS proudly announced that it completed an unprecedented 10 million immigration cases over the same period, reducing its backlog for the first time in a decade—but only 52,000 of those were asylum cases! 

The current average wait for an interview for affirmative asylum applicants is approximately six years; defensive asylum applicants wait on a court appearance for 4.3 years on average.

And here’s the thing for affirmative asylum applicants: you don’t file, wait 180 days, and go work for six years until it’s your turn for an interview.  Some asylum officers work with applications pending in the backlog, starting with the oldest applications and working forward, but the majority of asylum officers start from the front and move backwards.  USCIS states on its website that this policy, established in 1995, “is intended to deter individuals from using the asylum backlog solely to obtain employment authorization by filing frivolous, fraudulent, or otherwise non-meritorious asylum applications.”

But that doesn’t address a clear issue: there are always newer applications, and there are more and more newer applications all the time.  What that means is that if you, the asylum applicant, don’t get interviewed quickly (applications pending 21 days or fewer are prioritized), you might not get interviewed for a long, long time. If some people are waiting a matter of weeks and the average is still six years, those who slip through must be waiting an awfully long time.

In short, the majority of asylum applicants spend years in a legal purgatory of indeterminate length, able to live and work in the United States and access certain public benefits (angering some), but without any assurance as to whether they’ll be able to stay (and when they’ll know) and unable to make any progress towards full participation in American society (angering others).

Oh Right—the Border

Reiterating the caveat from the start: this is a summary.  This is a starting point—if you read this and want to keep going, Godspeed.

Alrighty then.  Since 2004, most foreign nationals who are encountered by (or present themselves to) a US official near the border are subjected to expedited removal, a process which authorizes DHS to remove undocumented noncitizens without a hearing.

But, if you claim that you want to apply for asylum or are afraid of returning to your home country, you will be given a “credible fear” interview with an asylum officer in which you try to demonstrate a significant possibility you would succeed on an asylum claim.  If the interview goes well, you will either be referred to an asylum officer for an “Asylum Merits Interview” or directly to an immigration judge, before whom you can begin the defensive asylum process.  If the interview doesn’t go well, you will be recommended for deportation unless you can establish a separate justification to enter the US (we’ll cover those next time).

If the Asylum Merits Interview, generally held with an asylum officer between 21-45 days later (you may remain at a detention site in the interim), goes well, you may be granted asylum.  If it goes less well, you will be referred to an immigration judge where, again, you can begin the defensive asylum process. 

Simple enough-ish so far, but it gets a little complicated.

Remain in Mexico

In December 2018, the DHS under the Trump administration announced the Migrant Protection Protocols, or “Remain in Mexico” program, which allows the government to release migrants with asylum claims to Mexico to await their asylum hearings in the United States.  In February 2021, the Biden administration ended the policy, but in August 2021, a federal judge in Texas rule the reversal may have violated the Administrative Procedure Act and ordered the policy reinstated.  

In December 2021, after the completion of negotiations with the government of Mexico (turns out they do have something of a say in the matter), the practice was resumed with some alterations.  

In August 2022, following a favorable June ruling by the Supreme Court, the Biden administration ended the policy.

Title 42 and Circumvention of Lawful Pathways

We’re getting there.  The Trump administration declared COVID-19 a national emergency effective March 1, 2020.  During a national emergency, the federal government gets to do some things it can’t normally do (it also gets some discretion as to what those things are).

The “Title 42” policy comes from a 1944 law allowing limits at border crossings for public health reasons.  The Trump administration interpreted the law as allowing immediate expulsions of undocumented migrants at the border, including those seeking asylum in the United States.  The Biden administration continued the policy through May 11, 2023, the official end of the national emergency.  Immigration advocates on the left were highly critical of Trump when he started it and Biden when he kept it going (the following graph comes from some of these advocates).

So, here’s the thing: on the very day Title 42 ended, the Biden administration released a new federal regulation to more or less replace it—the “Circumvention of Lawful Pathways” rule.

Under the Circumvention of Lawful Pathways rule, would-be asylum seekers presenting themselves at the border are presumed ineligible unless they (or an accompanying family member):

• Already have permission to travel to the US;

• Use a DHS scheduling system to pre-schedule a time and place to present themselves at a port of entry (or show up and are able to prove they couldn’t use the scheduling system because of language barriers, illiteracy, technical failures, or some other serious issue); or

• Already sought and were denied protection in another country on the way to the US. 

Note that Mexicans, having not generally traveled through another country on the way to the border, are exempt from the presumption of asylum ineligibility (but, note also that Mexicans are typically among the least successful asylum seekers—there is widespread gang violence in parts of Mexico, but that would not typically serve as sufficient justification for an asylum claim).

What Was That Recent Executive Order All About?

On June 5th, President Biden issued an executive order that further tightens up the process for most migrants (there are certain enumerated exceptions, including for unaccompanied minor children): under “emergency border circumstances,” which exist when the number of people crossing per day exceeds 2,500—

1. Migrants who cross the border will be ineligible for asylum unless they demonstrate that “exceptionally compelling circumstances exist” for them or a family member they are traveling with.  These circumstances include an acute medical emergency, an imminent and extreme threat to life or safety (i.e., rape, kidnapping, torture, or murder), or severe forms of human trafficking;

2. Instead of asking migrants individually about whether they fear persecution and intend to apply for asylum, DHS will provide general notice regarding the asylum process and will refer a noncitizen for a a credible fear interview only if the noncitizen “manifests a fear of return, expresses an intention to apply for asylum or protection, or expresses a fear of persecution or torture or a fear of return to his or her country or the country of removal”; and

3. The standard in the credible fear interview is higher—there must be a “significant possibility that the noncitizen could demonstrate that…exceptionally compelling circumstances exist.”  Such noncitizens are then screened for a “reasonable probability of persecution because of a protected ground or torture.”

In Glorious Conclusion

If you made it this far, I owe you a meaningful nod and firm handshake.  Asylum is complicated—even more complicated than this article might make it seem.  I’ve written here about the numbers, about the broad strokes.  But I’ve also personally worked on affirmative asylum applications for migrant clients, including a successful application for a woman from Afghanistan who faced serious threats in her home country because of her outspoken advocacy for the rights of young women, and an application for a young LGBTQ girl from a country that would afford her far fewer rights than she can enjoy here (that application, like so many others, remains pending).  Asylum applications take a long time to prepare, and asylum applicants have no right to counsel whether they’re applying affirmatively or defensively—having a lawyer often ends up being a matter of luck.  Asylum applicants with legal counsel are granted asylum at far higher rates than those that go it alone.

Like with other aspects of our immigration system, there is no way to make everything perfect—to ensure that all laws are perfectly observed and all people are treated with perfect humanity.  But I think it is possible that things get better, and I think there’s great interest on both sides of the political aisle in getting to that better, even if we don’t have full agreement on what “better” is.

The plan for next week is to cover temporary visas and a laundry list of exceptions to the general rules, including parole.

Thanks for reading.

Today’s Random Fact

Germany has nearly twice as many castles as the United States has McDonald’s locations.  This means two things and two things only:

1. The US needs to build a lot more McDonald’s locations—can’t even beat Germany’s castle total?  That’s not what this country is about.

2. The US also needs to build a lot more castles.  I’m quite, quite pro-castle.

Hohenzollern Castle, which probably doesn’t even contain a single McDonald’s.

Today’s Random Recommendation

Slow Horses, both Mick Herron’s books and the Apple TV series.  Gary Oldman—the same guy who played Winston Churchill, Sirius Black, and Dracula—has called Jackson Lamb the “role of a lifetime.”  Seasons one through three are already out and season four is expected in late November.  I’m currently reading the fifth book and there is plenty of fun to come.

Subscriber Update

Making progress!  I’ll do a formal announcement separately, but if you go to the “leaderboard” page on the website, you’ll see that you can receive certain awards if you manage to refer a certain number of subscribers.  Three referrals get you a handshake and fond thoughts; ten get you a 30 minute call with me (can consist entirely of yelling) and an article on the topic of your choice; and 25 get you a call with a Major League Baseball player (getting a major lift here from my cousin, Ollie Dunn, the player in question).