Proposed changes to asylum regs could address biggest immigration problem: the court backlog

The Trump administration has published a proposal to revise the regulations that govern the processing of applications for asylum and withholding of removal.

According to the administration, the proposed changes would reduce the number of meritless claims, provide additional clarity for the adjudicators on issues commonly raised by asylum applications, and make the overall adjudicatory process more efficient. The proposal at page 36290 of the June 15 Federal Register.

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and Immigration Subcommittee Chair Zoe Lofgren (D-Calif.) have called the proposed changes “abhorrent, un-American, and illegal.”

The Tahirih Justice Center claims that the administration’s objective is to overturn U.S. asylum law by making it effectively impossible for people fleeing persecution to obtain protection in the United States.

And according to Ur Jaddou, the Director of DHS Watch, “For three and a half years, the American asylum system has been dying a death of a thousand cuts, but this regulation is a guillotine.”

Their concern is misplaced. 

The immigration court backlog crisis is the real threat to our asylum program, not the proposed regulations. The backlog was only 542,411 cases in January 2017, when President Donald Trump took office, and it has more than doubled since then. As of the end of April 2020, it was 1,166,085 cases. 

The average wait for a hearing was two years.

Moreover, pressure to keep up with the ever-increasing backlog has resulted in having to hire more judges, some of whom did not have any immigration law experience.

The situation is hopeless unless major changes are made in the way asylum applications are processed.

Efforts are being made to make the immigration court more productive, but they aren’t even close to being adequate.

In fiscal 2019, the immigration court completed 275,552 cases, which was the second-highest completion total in its history — but at that rate even if the court stopped accepting new cases, which isn’t going to happen, it would take more than four years to clear the backlog.

Expedited Removal Proceedings

8 USC §1225(b)(B)(iii) provides for the expedited removal of aliens who are inadmissible because they do not have valid entry documents or they have attempted to procure their admission through fraud or misrepresentation. However, an alien who expresses an intent to apply for asylum, or a fear of persecution or torture, will be interviewed to determine whether his fear is “credible.”

If the alien succeeds in establishing a credible fear of persecution or torture, he is entitled to a hearing before an immigration judge at which he can apply for asylum, withholding of removal under the provisions in 8 USC §1231(b)(3)(A), or withholding of removal under regulations for the Convention Against Torture (CAT). The United States has been a CAT signatory since 1988.

The only relief provided by a grant of withholding is that the alien will not be deported to the country where he would face persecution or torture. He could be deported to any other country that will accept him.

The proposed regulations would make a number of changes in the expedited removal procedures.

Currently, to establish a “credible fear” of persecution or torture, an alien just has to show “a significant possibility” that he will be able to establish eligibility for the relief he is seeking.  The proposed regulations would increase this to a “reasonable possibility” if the alien is seeking withholding of removal (Page 36268).

The proposed regulations also would require asylum officers to make additional legal determinations, such as deciding whether an alien is subject to statutory or regulatory bars to eligibility for the relief being sought. The asylum officer’s decisions would be subject to review by an immigration judge (Page 36272).

I don’t like these proposals. The proceedings are supposed to be expedited, and the additional tasks would make credible fear determinations take longer to complete.

Hearings before an immigration judge

The proposed regulations would also permit immigration judges to deny an application for asylum or withholding of removal without a hearing if the alien does not establish a prima facie claim for relief (Page 36277). This would be a problem for aliens who are not represented by counsel. Laymen can’t be expected to know the elements of an asylum or a withholding of removal application.

In addition to establishing eligibility, an asylum applicant must also establish that it is warranted as a matter of discretion. The proposed regulations provide factors that immigration judges should consider in making that determination. (Page 36282). Guidelines could be helpful. Data on asylum decisions indicates that the immigration judges are not applying asylum law uniformly. The outcome of a case may depend on which judge an alien draws for his hearing.

The proposal most likely to reduce the backlog

Currently, an alien who establishes a credible fear is entitled to a full hearing before an immigration judge in removal proceedings in accordance with the requirements in 8 USC §1229a. The proposed regulations would limit their hearings solely to asylum and withholding of removal. (Page 36267).

It’s unfair to give an alien who establishes a credible fear of persecution or torture an opportunity to apply for relief that is not related to persecution or torture. That opportunity is not available to aliens in expedited removal proceedings who can’t establish a credible fear.

Benefits of hearings solely for asylum and withholding of removal applications

More judges are needed to deal with the backlog, but apparently there is a shortage of experienced immigration lawyers who want to be immigration judges.

The Executive Office for Immigration Review (EOIR) has had to lower its standards. It has been hiring lawyers without any immigration law experience. In fact EOIR’s immigration judge vacancy announcement doesn’t even mention immigration law experience.

Immigration judges are on their own when they conduct hearings. It’s just them and the parties. And the immigration laws take time to learn — they have been described as second only to the Internal Revenue Code in complexity.

It isn’t possible to prepare a lawyer with no immigration law experience to handle the entire range of immigration law issues. It is possible, however, to prepare an inexperienced lawyer to preside over a hearing that is limited to asylum and withholding of removal.

The administration’s proposal isn’t perfect, but it is just a proposal. It’s not a finished product.

There is still time to improve it — and the rulemaking process provides people who want to do something more than just write angry op-eds with an opportunity to share their ideas with a large audience of interested parties. The deadline for submitting comments is July 15, 2020.  See page 36264 for instructions.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.