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Biden administration asylum changes would bypass Congress, swell illegal immigration, critics say

Proposed new regulation would transfer authority to decide claims from immigration judges to asylum officers while tripling potential appeal opportunities.

Updated: September 13, 2021 - 10:51pm

The Biden administration is proposing changes to the asylum process that critics contend would — in the name of administrative efficiency — circumvent current immigration law and sharply increase the numbers of illegal immigrants granted asylum, even as the U.S. is on track to receive more than two million illegal immigrants this year. 

The changes are considered "a key step toward implementing the administration's blueprint for a fair, orderly, and humane immigration system," the U.S. Citizenship and Immigration Services (USCIS) said in a statement

The Department of Homeland Security and Department of Justice published a 140-page notice of proposed rulemaking outlining how current regulations would be changed. The major change is suggesting that USCIS asylum officers solely decide asylum applications instead of immigration judges in an effort to "more promptly and efficiently consider the asylum claims of individuals encountered at or near the border, while ensuring fundamental fairness," DHS Secretary Alejandro N. Mayorkas said. "Individuals who are eligible will receive relief more swiftly, while those who are not eligible will be expeditiously removed.  We are building an immigration system that is designed to ensure due process, respect human dignity, and promote equity."

The proposed rule is part of an overall strategy of the administration to expand "pathways to apply for protection and opportunity in home countries, addressing the root causes of migration, and securely managing the Southwest border," USCIS says.

Officers would have unilateral power to approve applications for asylum, withhold individuals from deportation, and oversee claims related to the Convention Against Torture. If an officer were to deny an application, there are up to six ways to appeal, including to the U.S. Supreme Court.  

There is currently a backlog of 1.3 million cases, with approximately 610,000 pending asylum applications and 539 immigration judges as of April 2021, the proposal states. The median completion time for cases involving individuals who were detained through the 2nd quarter of FY 2021 was 43 days. The recent average case completion for non-detained individuals in removal proceedings in immigration court is roughly 3.75 years, the administration states.

With the influx of illegal immigration at the border, the backlog has ballooned, and the administration estimates "it will need to hire approximately 800 new employees and spend approximately $180 million to fully implement the proposed asylum officer hearing and adjudication process to handle approximately 75,000 cases annually."

In fiscal year (FY) 2020, asylum officers affirmed nearly 79,000 asylum cases, Doris Meissner senior fellow at the Migration Policy Institute, notes.

The proposed changes are "potentially a game changer," she argues. "Because it is being done through a regulation — the strongest legal footing to enact policy change short of legislation — its implementation cannot be immediate, due to the required public comment period before issuing a final rule."

The regulatory change would facilitate a major change to immigration policy without going through Congress, argues Federation for American Immigration Reform spokesperson Matthew Tragesser. 

The proposal allows asylum officers "to quickly approve requests for asylum and other forms of humanitarian protections to aliens who illegally cross the border and release aliens subject to mandatory detention into the interior of the United States, contrary to statute," told Just The News.

The proposed rule changes came from "research and recommendations the Migration Policy Institute made in a 2018 report as a policy solution to make border case management more effective and timely," Meissner says. "Under the new policy, asylum seekers found to merit protection will not be kept in limbo for years at a time while awaiting a final status determination." 

But these changes don't "deter illegal immigration or discourage fraudulent asylum claims," Tragesser argues. "In fact, this proposal may only encourage more illegal immigration and fraud, as it will weaken the credible fear review process, resulting in a higher rate of aliens with meritless claims receiving protection from deportation."

The administration's "sole focus is to process migrants 'promptly and efficiently'" by hiring staff instead of addressing "flaws in the system that encourage illegal immigration and  asylum  fraud," he adds, indicating it "prioritizes  processing and not immigration enforcement." 

Biden's plan "is just the first step in placing every migrant who crosses the southwest border illegally on a five-year path to citizenship," former immigration judge Art Arthur told Just The News. 

Under Biden's plan, illegal aliens denied asylum would have six opportunities to have their denial appealed, an additional three more than they already have, including petitions for review by the circuit courts and the U.S. Supreme Court, Arthur explained in a recent article at the CIS website.

"As a practical consequence, even if they are never granted asylum, their individual cases will grind to a halt," wrote Arthur, now resident fellow at the Center for Immigration Studies, an immigration think tank that calls its stance "pro-immigrant, low-immigration."

Another proposed change involves rolling back asylum eligibility rules imposed by the Trump administration. Doing this "would take away the rights of the American people to be represented in court when illegal migrants seek benefits that would place them on the path to citizenship," Arthur argued in a CIS analysis. "The rules would make it harder for DHS to remove those aliens by giving them more appeal rights. And they would swell already historically high levels of illegal immigration and abet fraud by promising aliens who have made bogus asylum claims freedom from detention.

"If you think that illegal migration and court backlogs are bad now, just wait until these rules are allowed to take effect."

The Biden plan suggests phasing in resources through FY 2022 and FY 2023, with an expected initial cost to taxpayers between $180.4 million and $1 billion on the higher end, with a 10-year cost projection costing taxpayers between $1.5 billion and $8.6 billion.