President Trump recently unveiled a new immigration plan claiming it will “expedite relief for legitimate asylum seekers by screening out the meritless claims.” In principle, improving the accuracy and efficiency of the asylum process is the right approach.
Unfortunately, the administration’s strategy has sacrificed the quality of decisions without creating a more orderly process. For example, his Remain in Mexico program is pushing asylum seekers with meritorious claims back into danger and creating confusion and chaos at immigration courts.
To improve the efficiency of asylum adjudications, the administration should build up the corps of asylum officers and immigration judges who are trained to decide these complex cases and identify which migrants qualify for humanitarian protection.
First, more trained USCIS asylum officers should be deployed to the region to conduct credible fear interviews. These interviews are a preliminary screening, done within days or weeks after someone is apprehended. If done properly, these credible fear interviews quickly and fairly weed out cases that are clearly ineligible and determine which cases should receive a full asylum hearing.
Due to the sensitivity and complexity of claims of persecution, it would be a grave mistake for Congress to grant the administration’s request for an extra $23 million and authorize the Border Patrol to conduct credible fear interviews.
Border Patrol’s mission does not include the adjudication of asylum claims, and their agents lack the training that asylum officers have in the proper trauma-informed techniques that are necessary for interviewing victims of violence. The actual statute specifically requires trained asylum officers.
In addition to assigning more asylum officers to handle credible fear interviews, the process would be more efficient if asylum officers are given the authority to conduct full asylum adjudications for border arrivals, which currently only immigration judges perform. This would speed up asylum decisions by reducing the amount of time the immigration courts spend on each case. Initially USCIS’s resources would be strained, but officers would not need to be deployed to the border. Accuracy would not be sacrificed since the immigration court could still review the officers’ decisions.
The immigration courts can also operate more efficiently by restoring judges’ authority to manage their dockets. Subject to the control of the Department of Justice, the immigration court’s operations have been severely disrupted by the fluctuating priorities of past administrations.
The current administration has taken an even more aggressive approach by stripping judges of the power to continue, administratively close and terminate cases — this forces cases to be heard on a certain date but fails to recognize judges can work more quickly if allowed to prioritize their cases. If a victim of trafficking is applying to USCIS for a trafficking visa, the immigration judge should be able to postpone that case until USCIS completes its review. Ultimately Congress will need to pass legislation creating an independent immigration court, but in the meantime, these new policies should be rescinded to maximize limited court resources.
Case adjudication can also be made more efficient by providing lawyers to asylum seekers. Immigration judges widely agree that legal counsel increases efficiency because a person who is represented by a lawyer is less likely to bring unmeritorious claims and is more likely to appear in court. In April, the administration’s Homeland Security Advisory Council recommended providing migrants with counsel. Importantly asylum seekers represented by counsel are many times more likely to receive a fair hearing and win their claims.
Finally, the government will reduce costs and improve processing speed by using alternatives to detention to ensure asylum seekers appear at court and asylum officer hearings. Alternatives to detention like the DHS Family Case Management Program have a near perfect – 99 percent – appearance rate. Detention is not necessary to ensure compliance and costs American taxpayers up to ten times as much as alternatives. The current administration’s reliance on detention has also resulted in inhumane policies like family separation that fuel the sense of disorder.
The other drawback to escalating the detention of asylum seekers is that immigration judges and asylum officers are being forced to compromise the quality and fairness of decisions. The DHS Advisory Council proposed setting up a “rocket” immigration court docket at the border to process cases within 20 days. Even assuming people have legal counsel, it would be nearly impossible within 20 days to gather supporting evidence, interview witnesses, research the applicable asylum law, and draft the required legal documents — some of the many steps in preparing an asylum case.
Americans want solutions that will restore order to the border region without sacrificing fundamental humanitarian values. The answer is to mobilize USCIS asylum officers and the immigration courts and to increase their capacity and authority to handle cases. Greater speed is possible while still maintaining the integrity of U.S. asylum law.
Gregory Chen is the director of government relations at the American Immigration Lawyers Association (AILA). Prior to joining AILA in 2010. Chen worked for Lutheran Immigration; he came to Washington, D.C. after spending five years in San Francisco at Legal Services for Children.