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Biden blamed by own ex-border chief for soaring asylum cases, record immigration court backlog

The surge in pending asylum applications to enter the U.S. comes after an all-time high number of illegal border crossings this year.

Published: December 29, 2022 8:28pm

Updated: January 1, 2023 1:27pm

The Biden administration is to blame for soaring asylum cases that have created a record years-long backlog in U.S. immigration courts, according to President Joe Biden's own former Border Patrol chief.

"Several factors have contributed to this backlog, but the massive increase that we're seeing today can be directly attributed to the Biden administration's border and immigration policies," said Rodney Scott, who headed the Border Patrol in both the Trump and Biden administrations.

"When the Biden administration went against the recommendations of experienced career border security professionals, terminated the Migrant Protection Protocols, canceled the Asylum Cooperative Agreements, and lowered the bar for credible fear determinations," Scott continued, "they sent a message worldwide and opened the flood gates for anyone that could make up a sad story or recite the one that was provided to them by the cartel and so-called migrant aid organizations operating in Mexico."

The Trump administration implemented both the Migrant Protection Protocols and the Asylum Cooperative Agreements. The former, commonly called the Remain in Mexico policy, requires some migrants seeking asylum to stay in Mexico as they await their immigration court date rather than be detained or released in the U.S. The latter are a series of agreements negotiated with Central American countries to curtail asylum fraud and limit asylum access to the U.S.

The Biden administration halted the agreements and has been trying to end the protocols. Earlier this month, however, a federal judge put a hold on the administration's ongoing legal efforts to terminate Remain in Mexico.

The current years-long asylum backlog comes as illegal attempts to cross the southern border continue to reach all-time highs and critics blast the Biden administration for not doing enough to deter illegal immigration.

"While Congress owns the blame for leaving known loopholes in our immigration and asylum laws unaddressed, the massive increase in illegal border crossings and associated asylum claims falls squarely on the Biden administration and is a direct result of their failed policies," Scott said.

Syracuse University's Transactional Records Access Clearinghouse (TRAC) found in its latest assessment that nearly 1.6 million people seeking asylum in the U.S. are waiting for asylum hearings, the largest total number of pending asylum applications on record.

About half this total — 778,084 asylum seekers — are waiting for hearings before U.S. Citizenship and Immigration Services (USCIS) asylum officers, who are part of the Department of Homeland Security.

The other half — 787,882 — are waiting for hearings before judges in the Justice Department's Immigration Courts. This number includes a spike of over 30,000 new cases in just October and November, the first two months of fiscal year 2023.

In March, to expedite the asylum process and decrease the backlog, the Biden administration implemented a new rule allowing asylum officers with USCIS to issue rulings on asylum cases for illegal immigrants rather than just judges.

However, the asylum backlog wait time for court appearances has increased to an average of 4.3 years nationwide, according to TRAC, which noted that at the end of fiscal year 2012, just over 100,000 asylum cases were pending in the Immigration Court's backlog. In other words, the backlog increased more than seven-fold in a decade.

That being said, asylum backlogs aren't new, as the number of people seeking asylum has normally exceeded the capacity of government agencies to process applications quickly and fairly. But in recent years, the situation has deteriorated precipitously.

"With political, economic, and environmental instability in places like Mexico, Venezuela, Haiti, Central America, Ukraine, and elsewhere, the United States has seen a growth in migrants' needs that outpace even the growing number of Immigration Judges and asylum officers added by both Democratic and Republican administrations," the TRAC analysis stated.

Another cause of the recent spike, according to experts, is current U.S. policy.

"The problem has been steadily getting worse under every administration, but President Trump put in place the Migrant Protection Protocols, which kept most potential asylum applicants out of the U.S. while they got their due process," said Simon Hankinson, senior research fellow at the Heritage Foundation's Border Security and Immigration Center.

"The Biden administration then undid everything Trump did, for largely political reasons," added Hankinson. "Biden and [Secretary of Homeland Security Alejandro] Mayorkas have super-charged an already vulnerable system by allowing in at least half the illegal migrants either apprehended at the border or who give themselves up at legal ports of entry. They process them quickly by taking their basic info, given them parole (an abuse of the statute's intent) by the hundreds of thousands, and let them into the country to await a process which was taking years to run through even before the current wave … It's a man-made disaster of historic proportions."

Hankinson explained that under U.S. law, in order to receive asylum, individuals leaving their own country are supposed to show "past persecution or well-founded fear" of future persecution based on their race, religion, nationality, membership in a particular social group, or political opinion.

However, now the system "is being exploited by millions of economic migrants," he said. "They are fleeing hardship of all kinds, including bad governments and weak economies, but up to 90% don't meet the bar to get asylum. Because of current policy, they get to jump the long line of legal immigrants by simply showing up at the border."

According to a recent report from the Center for Immigration Studies, the skyrocketing asylum backlog, which jumped 22% from June 2021 to June 2022, is "postponing and reducing future legal immigration."

There's no downside, let alone deterrent, for people seeking asylum and dragging out the legal process, according to Hankinson, who added this factor along with a broader failure to enforce laws against illegal immigration have incentivized people worldwide to "take their chances on being let in."

Meanwhile, a separate TRAC report published earlier this month showed the Immigration Court received 170,398 new cases so far in fiscal year 2023, pushing the court's overall pending case backlog (not just asylum ones) above 2 million for the first time at the end of November.

The court is ramping up the number of cases it completes, but even the accelerated pace can't keep up with the higher number of new filings that are arriving and overwhelming the system.

"This is a huge problem on many levels and is getting worse every day," said Scott. "It is analogous to having a burst water pipe in your home and trying to address it by simply soaking up water with a washcloth. As the incoming water continues to far exceed any remediation efforts, everything in the home will eventually be affected.

"Nearly every border town is already a disaster," Scott continued. "We are now seeing cities like San Antonio, New York, Chicago, and Washington D.C. cry for help as the social service capabilities are exceeded."

While those seeking asylum come from 219 different countries, according to TRAC, nearly 60% of applicants come from only five countries: Guatemala, Honduras, El Salvador, Mexico, and Venezuela. Meanwhile, about 30% of those seeking asylum are children.

"The shifting composition of nationalities reflects not just the volume of individuals arriving at our borders seeking asylum, but the country's policies and practices of which nationalities are being allowed to actually enter the U.S. and seek asylum," TRAC said. "Asylum seekers from the Northern Triangle countries and Mexico were usually immediately turned away under Title 42 and not allowed to enter and seek asylum. The Biden administration has created some exceptions to this policy, exceptions that have been structured by nationality."

The Biden administration added Venezuelans to the list of several nationalities that can be expelled under Title 42, the public health authority exercised by the Trump administration that allows border officials to expel migrants without allowing them to apply for asylum in order to limit the spread of COVD-19.

The Biden administration has attempted to end Title 42, but the Supreme Court on Tuesday ordered the measure remain in place during a legal challenge over its fate.

A third recent TRAC analysis discussed how fiscal year 2022 marked the largest number of individuals granted asylum in any year in the Immigration Court's history, with grant rates averaging 46% — up from 36% in fiscal year 2021.

"Not only were more asylum applications granted by immigration judges than ever before, but many asylum cases moved through the system faster due to a variety of Biden administration initiatives, including the Dedicated Docket," the report stated. "In this program, families seeking asylum were given expedited proceedings and moved to the head of the line, in front of those waiting in the court's existing case backlog."

The Biden administration's Dedicated Docket program was announced by the Justice and Homeland Security departments in May 2021 as a way to "significantly decrease the amount of time it takes for migrants to have their cases adjudicated while still providing fair hearings for families seeking asylum at the border."

Mayorkas said at the time that families arriving at the border who are placed in immigration proceedings should "have their cases decided in an orderly, efficient, and fair manner" and "not languish in a multi-year backlog; today's announcement is an important step for both justice and border security."

The TRAC reports and Title 42 ruling come amid a historic surge in illegal immigration.

Since Biden entered office, there's been a sharp rise in the number of people who've crossed the southern border illegally. The figure reached a record 2.38 million illegal crossings in fiscal year 2022 (which ended Sept. 30) and over 233,000 just last month, the highest November ever recorded, according to data from U.S. Customs and Border Protection.

These figures don't include so-called "gotaways," illegal immigrants known to have gotten past border agents. There were reportedly at least 73,000 known gotaways last month alone.

"I believe it is obvious that what this administration is doing isn't working," said Scott. "The keys to border security and putting integrity back into our immigration system are consequences and accountability. No one should be released into the U.S. until their case has been fully adjudicated. When a judge rules an alien has a legitimate asylum claim, they can be released into the U.S. But if the judge rules their claim doesn't have merit, the alien should be immediately transferred for removal."

Scott also called for the Biden administration to force other countries to take back their own citizens and to pressure Mexico to enforce its own laws and accept any migrant who crossed from Mexican territory.

"This last administration was making great progress in these areas. There's no reason this administration could not reimplement that playbook."

USCIS and the Justice Department didn't respond to requests for comment for this story.

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