Fixing the Affirmative Asylum System

As part of the Make Our Voices Heard campaign granted by the New York Community Trust, Immigrant ARC curated guest blog posts, each written by one of our members. These insightful and informative pieces highlight their insights, learnings, and recommendations around the current issues in immigration and immigration legal services. The posts reflect only the views of the member organization authoring them, and don't necessarily reflect the views of I-ARC, or our coalition as a whole. 

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By Mevlude Akay Alp, The Legal Project

The U.S. asylum system is at breaking point. While harsh expulsion policies are constantly erecting barriers for asylum seekers at the southern border, those who seek asylum affirmatively from within the U.S. also face an unpredictable path to a form of relief that has become increasingly out of reach due to an extremely backlogged system. 

At its Asylum Quarterly Stakeholder Engagement in February 2023, USCIS reported over 749,000 asylum claims pending before the asylum office nationwide. Asylum officers are transferred from local asylum offices and assigned to other duties based on varying administrative priorities. They are detailed to the southern border or assigned to specialized dockets or other priority cases, while asylum applicants with cases stuck in the ever growing back log continue to wait for an interview, in some cases up to 7 or 8 years. Others wait months or years following their interview for a decision. In the meantime, at best cases go stale and memories fade; at worst, family members left behind face persecution or death and their asylum-seeking family members in the U.S. are wracked with prolonged trauma and pain.

In 2017, the Trump administration introduced its solution, which was to reverse the order of scheduling of asylum interviews to “Last in First Out” (LIFO), premised on the false and prejudicial pretext that asylum seekers were filing false claims to asylum, which this policy would quickly weed out. The fact that the number of asylum applications filed continued to increase only disproves this notion. For a while under LIFO, asylum seekers were able to apply for and receive an adjudication of their asylum claim within a timely manner, allowing them to begin the path to family reunification, albeit at the expense of earlier applicants who fell even further behind. Yet even LIFO no longer guarantees timely adjudication, as most cases fall into the ever-growing backlog and the oldest cases continue to languish.

Asylum can be sought as a defense to removal for those in removal proceedings, or it can be applied for as an affirmative benefit before USCIS before the asylum office. It is the only affirmative humanitarian benefit for which an interview is required for adjudication. USCIS routinely grants applications for VAWA, T and U petitions based on a review of the applicant’s affidavit and supporting documentation, which involves a determination as to the credibility of the evidence provided. Yet asylum officers engage in hours long interviews pursuing rote questions, regardless of how well-documented the issues are, often having spent very little time reviewing the evidence beforehand. 

Fundamental change is going to be needed to clear up the excessively backlogged asylum system and provide asylum seekers with a meaningful opportunity to avail themselves of the protection they are entitled to under the Refugee Convention. One step USCIS can take is to consider granting well-documented, clearly eligible asylum cases without an interview, as is done for other affirmative applications. At the very least, cases should be reviewed thoroughly prior to interview and asylum officers should narrow their questioning in well-documented cases, as is often done in defensive asylum cases before the immigration court to allow for more efficient adjudication. 

No one solution will clear up the extreme backlog and provide a more streamlined system of adjudication, but starting with measures that give asylum applicants the benefit of the doubt and disbanding with policies that treat them with suspicion, such as LIFO, or prioritize border expulsion, would be a start.