The Departments of Homeland Security and Justice (DHS and DOJ respectively), are blundering ever on toward administrative collapse with their latest version of asylum reform. Back in August of 2021, we saw the initial draft which was a radical overhaul of the entire asylum process in the middle of “seasonal” surge of migrants at the border. The focal point of the plan was empowering asylum officers to unilaterally approve asylum applications in a nonadversarial process without reasonable opportunity for adequate cross-examination or consideration of derogatory facts. In addition, DHS would also unlawfully expand the use of parole for aliens they encountered based on nothing more than an expedited way to release people they refuse to detain. After receiving over 5,000 comments (most of which were negative, based on the new draft spending most of its comment response time focusing on negative feedback) from the public, DHS and DOJ are back at it again with a more convoluted and absurd draft of their expedited asylum approval rule.
Usually, in a functioning democratic republic, receiving tons of negative feedback while also experiencing an ever worsening crisis at the border, the government might feel the pangs of caution before embarking on such a radical course in the middle of a crisis. Fear not, however, for the Biden Administration is not here to carefully consider the facts and reach a reasonable conclusion. This expedited asylum approval rule doubles down on the absurdity. Purely symbolic sham timelines are added in this new version to give the appearance of seriousness. Do not be fooled as this is virtue signaling via the federal rulemaking process. The current average time it takes to adjudicate an asylum claim is over four years. Simply putting hard and fast deadlines on your staff doesn’t magically make the 600K+ asylum backlog disappear. Every single time you see any sharp deadline in this regulation please regard it the same way you would listen to people discuss what they would do if they won the lottery. It is ludicrous that naivete and wishful thinking is the foundation of our new asylum system, but here we are. Even under permissive judicial review of the rational basis variety, judges should find this proposed asylum structure arbitrary and capricious.
The fundamental contradiction at the heart of this regulation is straightforward. The regulation, in the name of fairness and efficiency, places ultimate authority for adjudication of asylum applications with asylum officers. The theory behind this is that it reduces the procedural path of adjudication by cutting out the immigration judges who are facing a massive 600K+ backlog of asylum cases. Seems simple, right? Judges are overwhelmed so why not outsource the work to asylum officers? The trouble is that the Biden Administration even screws this up. The regulation only allows the expedited process if the asylum officer approves the application. If the asylum officer denies the application, then the regulation preserves the appeals to immigration judges. Which means, in the case of denials, this regulation has zero effect on increasing efficiency. But wait there’s more, the revised rule actually expands the rights of asylum applicants in their appeal of a denial. The first draft actually tried to limit applicant procedural maneuvering on appeal to speed up the process. Turns out the one group of commenters the Biden Administration listened to was the group that said his new rule was too hard on denied applicants. So for asylum denials, the rule will not change much unless you believe adding unrealistic timelines matters.
At this point it is fair to wonder why DHS and DOJ would make such a distinction between approvals and denials. The answer is that in a nonadversarial process up to one low-level staffer, it is very likely that pertinent information could be missed. Furthermore, it is highly likely that cases of fraud will be missed and rewarded. The Biden Administration wants to make sure they defend against improper denials for bona fide asylum applicants. This is admirable until you realize what that means for the regulation as a whole. Namely, if even DHS and DOJ refuse to trust the new nonadversarial process they are creating with respect to denials, then how is that same process reliable to produce approvals? What would the Left say about a Trump Era asylum rule that created a rushed adjudication system where only denials were final and approvals had to go through a much more complicated and onerous process?
This disparate treatment of asylum approvals and denials is plainly arbitrary and capricious. If asylum officers can be trusted to expeditiously approve asylum applications absent appeal, then the same would be true for denials. It is even odder when you consider how treating denials differently fundamentally frustrates the proposed purpose of the rule to increase efficiency. In a real sense, this regulation trades the ability to carefully consider asylum applications for the mirage of efficiency.
Perhaps the most troubling aspect of the proposed asylum process is that it only achieves the goal of expanding efficiency if asylum officers improperly approve a majority of applications. I say this because under the current adversarial system where applicants for asylum must prove their eligibility to an immigration judge, the majority of claims are denied. Only about 20 to 30 percent of asylum applications are approved. Now, if that trend holds under the new regime, then all of those denied still retain the right to appeal their denial. This leaves DHS and DOJ in the exact same predicament they are in currently.
Thus we see the writing on the wall: This rule only makes the asylum process more efficient (by eliminating careful evaluation of applications) if asylum officers begin to approve asylum claims unilaterally at a far greater rate than immigration judges have. Unless the theory of DHS and DOJ is that the immigration courts have been systematically improperly denying asylum claims for years, then this regulation represents a clear incentive to approve far more asylum claims than current law would allow.
Since this regulation only increases efficiency if previously improper claims are now approved, we must assume that’s the goal. This is all the more troubling given the stakes. Granting someone asylum begins an expedited path to citizenship. This regulation clears the way for migrants at the border to have one of the fastest and smoothest paths to citizenship available in the country. They can speak to one asylum officer and be approved for the primrose path to citizenship. Unlike immigration judges, the new path will have asylum officers making the legal determination without benefit of (potentially) any derogatory information and on an expedited timeline basis. Basically, DHS is claiming that already overworked low-level staff can carefully consider complex evidence to make highly impactful legal determinations that can lead to citizenship in America. It is patently absurd that they claim this is a workable solution for anything other than an asylum approval assembly line.
And this brings us to the ultimate frustration with the regulation. Creating an expedited asylum approval assembly line could not come at a worse time for our border. As word spreads about a citizenship express lane being open at the border this “seasonal” surge will only get worse. Our asylum officer corps will learn that with great power comes great responsibility. The workloads will be enormous and the stakes are only that they might hurriedly grant asylum to a public safety threat. For the Biden Administration, if this is really a good faith effort to stem the tide and mitigate the worst effects of their border crisis, then we are doomed. The defenses of the proposal are too convoluted and the structure of the regulation so naive that one can’t help but reach the conclusion that they are completely disconnected from reality. If this regulation is actually implemented we might all do well to unplug from reality as well.
JARED CULVER is a Legal Analyst for NumbersUSA
Updated: Fri, Jul 1st 2022 @ 9:31am EDT