The Corner

Immigration

Fixing the U.S. Asylum System

Children are escorted to the Cayuga Center which provides foster care and other services to immigrant children separated from their families, in New York City, New York, July 10, 2018. (Brendan McDermid/Reuters)

Americans of all stripes should avoid letting continued outrage over Trump’s defunct family-separation policy distract from the fact that the United States’ asylum rules are broken. So argues David Martin, professor emeritus at the University of Virginia School of Law and a former general counsel to the INS, in Vox. At a time when the immigration debate seems cripplingly polarized, I’ve consistently been impressed by Martin’s efforts to carve out a reasonable middle ground. His assessment of the asylum crisis is no exception. Alas, to appeal to an audience on one side of the political aisle, one often has to express disapproval of forces on the other side. To make his case for a more orderly asylum system, for example, Martin observes that the present chaos “provides continual fodder for anti-immigration demagogues,” a characterization that might strike you as a bit unfair. Regardless, though aimed at Vox’s left-of-center readership, his prescriptions are also of interest to restrictionists.

Martin begins by observing that the Department of Homeland Security is facing a backlog of about 300,000 pending cases while the country’s 350 immigration judges are looking at a buildup of 700,000. It would take years for the system to clear those claims, even if no new ones were added. Luckily, Martin argues, the United States should have a pretty clear idea of what to do, since it solved this problem before, in the 1990s.

In those days, false claims were a huge and growing problem. One factor was the treatment of “affirmative” asylum claims, or those brought by immigrants before any removal proceedings were started against them. These claims would sometimes be turned down by the asylum officer in charge of the case, but those officers had “no authority” to issue a removal order. That was in the hands of a special attorney, who was appointed by the attorney general to conduct removal proceedings. Sometimes those cases were never referred, and even when they were, the claimant could resubmit the asylum claim.

Meanwhile, the ranks of “defensive” claims — that is, claims made after removal proceedings were already underway — was swelling. That increased the amount of time it would take to hear each case. And under U.S. law, Martin explains, most all claimants could get work authorization shortly after filing. It made sense, then, for some immigrants without official work authorization to false asylum claims, get work authorization, and then accept the (relatively slim) chance that he or she would be referred for removal any time soon.

A few reforms helped bring order to the chaos. First, it became “virtually automatic that affirmative asylum claimants whose claims were rejected by the asylum officer would be placed into removal proceedings,” Martin, who helped design the reforms, writes. Second, work authorization was granted only to those applicants who were approved for asylum, unless the applicant’s case was not settled within six months (in that case, the applicant would get work authorization). This stipulation — the doubling of immigration judges, hiring of addition asylum officers, and decision to process the newest cases first — helped bring down the waiting time for asylum decisions. In turn, writes Martin, “asylum filings with the immigration authorities declined from more than 140,000 in 1993 to a level between 27,000 and 50,000 for virtually every year from 1998 through 2013.”

Of course, things fell apart again as budgets declined, the six-month rule was breached, and new cases started pouring in. This time, however, the outlines of the fix should be clear. And to make it last even longer, Martin argues, the United States should also be more strategic about how it uses detention to make sure that those who are most likely to flee don’t, and should get tougher-minded about what qualifies for asylum even as it assists countries in Central America to make asylum less necessary. This latter subject is of particular interest to me, and I hope to address it at greater length.

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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