Introduction

The landmark 1965 Immigration and Nationality Act and 1980 Refugee Act codified the right of any person who has been persecuted or has a well-founded fear of persecution on account of five main factors: race, religion, nationality, membership in a particular social group, or political opinion, to seek safety in the United States. These people are known as “forcibly displaced.” Forcibly displaced people in the US fall into two main categories: refugees and asylum-seekers. Refugees apply for entry into the US and are approved for resettlement while outside of the US. Asylum-seekers apply at a port of entry or from inside the country.

The United States recognized the need for refugee and asylum programs following the devastation of World War II and the large population of displaced people. Asylum infrastructure developed throughout the following decades. Modern conflicts have generated large numbers of people seeking asylum which have proved challenging for asylum infrastructure to manage. While the United States once led the world in asylum resettlement, it now faces international scrutiny for human rights violations against asylum seekers.

Historical Overview of US Refugee and Asylum Policy

Pre-1939 System

Asylum-seekers were not distinguished from other immigrants, and were processed using the same criteria and methods. For much of the US’s history there were few restrictions on immigration.

1939-1945 World War II

World War II had a profound impact on the international response to displaced people. An estimated 60 million people were homeless and displaced following the war. This created the need for international recognition for displaced people and a system of relocating them. In addition, many persecuted people fleeing during World War II with credible cause found themselves turned away from safe countries. One example of this was a ship carrying 900 Jews fleeing Germany in 1939, which was sent back to Germany after making port in the US and asking for asylum. More than half of the passengers who returned to Germany were killed. Stories like these created an international desire for asylum processes, so that the fate of those passengers would not be repeated. However, the international community has not always lived up to this goal.

1948 Displaced Persons Act

This act codified the notion that displaced people have a right to enter the US, which had not been established through law previously.

1951 Convention Relating to the Status of Refugees

This convention was held by the newly-created United Nations to create protocols for displaced people following World War II. Initially, the protocols only referred to people who had been displaced by events prior to 1951 (i.e. World War II) but the purview was later expanded. Although the title refers specifically to refugees, at this time there was not a distinction between refugees and asylum seekers. The protocols designated several key definitions and laws which applied to all member states:

1. Defined refugee as a person who has fled their country of origin and is unable or unwilling to return because of a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or political opinion.
2. Created the international law that no person should be forced to return to a country where they fear threats to life or freedom, known as refoulement.
3. Included the note that oftentimes people need to break immigration laws in order to claim asylum, and it is illegal to prosecute them for breaking those laws.
4. Set out expectations that those granted asylum would have the same right to public services and work authorization as citizens of the host country.
5. Excluded people who commit serious crimes, including war crimes and crimes against humanity (deliberate acts which cause suffering or death on a large scale), from these protections.

1965 Immigration and Nationalities Act Amendments

The amendments to the Immigration and Nationalities Act (originally passed in 1952) allowed for the conditional entry of people into the US who could credibly demonstrate they were persecuted or feared persecution on account of race, religion, or political opinion.

1967-8 United Nations Protocol and US Accession

This protocol expanded the 1951 Convention policies towards all displaced people, not just ones displaced from World War II. The following year, the United States acceded (in international law, to become party to an agreement or treaty) to the UN Protocol.

1980 Refugee Act and Interim Regulations

The Refugee Act contained several key provisions relating to asylum-seekers:

1. The formal process for applying for asylum at a port of entry was established. 
2. Asylum-seekers became able to apply for lawful permanent residence (green cards) after one year in the country.
3. The right of every person to claim asylum was established, regardless of the country or region they come from. This means that people could not be discriminated against in the asylum process based on their country of origin.

The Interim Regulations laid out the asylum process in more detail, including that asylum-seekers have the burden of proving they are eligible for asylum, can be granted work authorization while awaiting a decision, and those individuals who are eligible for permanent residency in another country (different from their home country) or who pose a threat to the United States are not eligible for asylum.

 1990 Final Rule on Asylum

The Final Rule was a list of principles and regulations put out by the Immigration and Naturalization Service which established core principles governing how asylum claims should be adjudicated:

1. Asylum seekers must demonstrate they face continuing or future persecution in their country of origin, not just past persecution.
2. An individual’s testimony is sufficient basis for demonstrating eligibility for asylum; they do not have to have corroborating evidence so long as their testimony is consistent with what is known by the US government about the conditions in the county.
3. An individual qualifies for asylum if they demonstrate that they are part of a group which is persecuted based on one of the protected categories (race, religion, nationality, and membership of a particular social group or political opinion), even if they have not personally been persecuted.

1990 Immigration Act

The 1990 Immigration Act barred individuals convicted of an “aggravated felony” in the US from seeking asylum. 

1996 Illegal Immigration Reform and Immigrant Responsibility Act and Implementation (IIRIA)

This act expanded the definition of someone who could apply for asylum to include individuals who had been victims of “coercive population control” in the form of a forced abortion or sterilization. In addition, it created three limitations on asylum applications:

1. Applicants must apply for asylum within one year of entering the United States, barring extraordinary circumstances.
2. Otherwise-eligible applicants can instead be removed to a safe third country “pursuant to an agreement” between the countries, where the individual would be eligible for asylum or similar protection.
3. Otherwise-eligible applicants who could reasonably be expected to relocate within their own country are not accepted.

The IIRIA also created the “expedited removal” process, which allows individuals arriving without valid documentation to be deported by an immigration officer without legal counsel or an immigration judge. Individuals being interviewed for expedited removal can express the intent to apply for asylum, at which time they are given a credible fear interview by an asylum officer. If the asylum officer thinks they demonstrate that there is a “significant possibility” that they will qualify for asylum, they are able to continue with the asylum process. If not, they are deported. This process is visualized in a diagram in Appendix 2.

2002 Creation of Department of Homeland Security

After 9/11, Congress passed the Homeland Security Act to consolidate the 22 existing US organizations relating to the issue of “homeland security” into one organization: the Department of Homeland Security. Notably, Immigration and Naturalization Service, which was originally under the Department of Justice, was then incorporated into DHS and split into 3 agencies: U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services. ICE is the largest investigative agency within DHS, with approximately 20,000 employees in 400 offices. It has 2 divisions: Homeland Security Investigations and Enforcement & Removal Operations. The latter is responsible for enforcing the nation’s immigration laws and ensuring the departure of removable immigrants from the United States. 

2016 Changes to Asylum Policy

The Department of Justice under the Trump Administration undertook five steps to reduce the number of asylum-seekers admitted into the US.

• Metering: metering is a process whereby only a set number of people per day are allowed to begin their asylum claim at a port of entry.
• Family Separation: also know as the “Zero Tolerance Policy,” this involved separating parents seeking asylum from their children, to disincentivize asylum applicants and undocumented immigration. 
• Remain in Mexico: the Migrant Protection Protocols allow the US government to deport asylum-seekers who crossed through Mexico in order to make their asylum claim back to Mexico for the duration of the adjudication process, rather than allowing them to reside in the US.
• Narrowing the ground for asylum: individuals who experienced persecution at the hands of non-state actors faced a significantly higher burden of proof to qualify for asylum. This primarily impacted victims of domestic and gang violence.
• Transit-Country Asylum Ban: this ban required asylum seekers who pass through Mexico on their way to the United States to demonstrate that they had applied for asylum in Mexico first.

2021 Changes to Asylum Policy

Since taking office in January 2021, the Biden administration has made a handful of changes to the Trump administration’s asylum policies. They are discussed in further detail in the Current Policies section.

• Ended Trump administrations “remain in Mexico” policy, also known as Migrant Protection Plan, for asylum applicants
• Made immigrants fleeing domestic or gang violence in their home country once again eligible for asylum.
• Created a task force dedicated to the reunification of families.
• Issued review to end “Public Charge Rule” that made it more difficult for asylum applicants to be approved who have disabilities or economic burdens.

Read More

• Read more about the 1951 UN Refugee Convention 
• President Truman’s message about the importance of providing a safe home for refugees in the US following the refugee crisis of World War II

Background

Statistics on US Asylum

There is no set limit on how many asylum claims can be granted per year. Applicants must apply for asylum within a year of entering the United States in order to be considered, unless they demonstrate extraordinary circumstances preventing them from doing so. Asylum grantees in recent years primarily came from China, Venezuela and countries in Central America like Honduras, Guatemala, and El Salvador, otherwise known as the Northern Triangle.

Figure 1: Asylum Applications and Acceptances (2012-2017)

As can be seen in Figure 1, the number of asylum applicants has increased throughout the decade. This is due to increased authoritarianism in China and instability and gang violence in Central America. Contrary to a widely-held belief, only a fraction of asylum seekers are from Mexico. Instead, many asylum seekers originate further south and pass through Mexico to seek asylum on the southern border. While the number of asylum applications has increased, the overall number of people attempting to enter the United States via the border with Mexico is at a historic low. 

The Southern Border: Asylum Seekers and Undocumented Immigrants

One major pathway for asylum seekers from Central and Latin America is to travel through Mexico and apply at a port of entry on the US’s southern border. This is a also a common route for undocumented immigrants to enter the country. The media narrative in the US has focused in recent years on people approaching the southern border and portrayed the issue as a crisis. However, it is important to note that while asylum seekers have increased across the span of the decade, undocumented immigrant entries have decreased and overall border crossings are at a historic low according to the Department of Homeland Security. As can be seen in Figure 2, overall border crossings have been declining since the early 2000s.

Figure 2: Total Apprehensions at the southern border (1975-2018)

Why People Are Seeking Asylum

China: Individuals flee China primarily due to the Chinese government’s crackdown on freedom of expression and religious liberties. Chinese citizens face some of the strictest censorship laws in the world, and minor acts of defiance can result in criminal prosecution and a prison sentence. A 2017 report from Freedom House suggested that at least 100 million Chinese citizens faced “high” or “very high” levels of religious persecution. Because of this, many Chinese people seek asylum in the US on the basis of political opinion or religious persecution.

Northern Triangle (Honduras, Guatemala, El Salvador): Push factors, or social and economic factors causing people to leave a country, are often intertwined, which means understanding and addressing the issues has to be done holistically. Many people in the Northern Triangle countries suffer from chronic poverty, a problem which is exacerbated by weak governments which cannot provide a sufficient social safety net or economic opportunity, and extreme weather conditions like flooding, drought, and hurricanes. Poor economic conditions are not sufficient causes for asylum applications to the US, but the chronic poverty and weak government provided a fertile recruitment ground for gangs and international drug cartels.

Poverty rates in this region are some of the worst in Latin America, and the homicide rates are the worst in the world. Homicides in Honduras had just a 4% conviction rate from from 2010 to 2013, and there is a pervasive sense that criminals can operate with impunity. The International Crisis Group’s research into gang violence in El Salvador found that El Salvador has more gang members than police officers (60,000 to 52,0000) and roughly 8% of the country’s entire population is part of the gang social support base. The two primary actors in the region are the gangs MS-13 and 18th Street. Women are especially impacted by gang activities; sexual violence and femicide are common and the governments’ lack of efficacy on tackling gang-related crimes as well as the disempowered position of women generally mean there is often little protection or recourse for these crimes.

Instability in the region and high demand for drugs in the US has caused Central America to become a major highway for drug trafficking. The United States is the largest cocaine market in the world, and international drug traffickers took root in Guatemala, Honduras, and El Salvador to transport cocaine from the Andean production region. The wealth associated with the drug trade, contrasted with the poverty of the region, empowers traffickers to recruit locals as transporters, commit violence against those who resist, and claim sovereignty over key routes, all with relative impunity.

Read More

• For an overview of the legal immigration system and more information on each of the four main entry paths for permanent residents, read this primer from the Migration Policy Institute.
• This interactive chart demonstrates the annual number of people granted permanent residency in the US from 1820 to the present day.

Current Policies and Challenges

Homeland Security’s Role in US Immigration

Immigration services were handled by the Department of Justice up until the official establishment of the Department of Homeland Security in 2002. Following this, the Department of Homeland Security established three new agencies to take on the new roles that encompass immigration services. These new agencies were the Bureau of Customs and Border Protection, the Bureau of Immigration and Customs Enforcement, and the Bureau of Citizenship and Immigration Services. Each of these agencies are assigned specific roles and responsibilities to ensure American safety and security.

The Bureau of Customs and Border Protection (CBP) is responsible for protecting the 328 ports of entry in the United States and enforcing the hundreds of laws and regulations that provide safety to citizens and trade. As part of their duty, CBP can question, investigate, and detain aliens arriving at any U.S. port of entry. The United States Border Patrol is a subset of this agency and is responsible for monitoring all land borders of the United States. Their jurisdiction to investigate, arrest, and detain aliens is within 99 miles of land borders. 

As CBP’s roles and responsibilities are mainly limited to borders and points of entry, the Bureau of Immigration and Customs Enforcement (ICE) is responsible for enforcing immigration laws in the remaining areas of the United States. In addition to the enforcement of immigration law, ICE investigates, arrests, detains, and removes illegal aliens. They also identify smugglers, locate persons illegally in the U.S., handle the illegal employment of aliens, combat money-laundering, and, through their attorneys, represent the U.S. government in immigration prosecutions. In general, CBP and ICE have very similar responsibilities but with different jurisdictions.

U.S. Citizenship and Immigration Services (CIS) is responsible for reviewing applications for permanent residency and citizenship. While it is not a law enforcement agency, CIS has some similar roles to the other agencies as it approves immigrant visas and can send individuals to immigration court. Additionally, those seeking asylum apply through this agency.

Processing Asylum Claims

Asylum-seekers can apply through an affirmative or defensive process. Charts visualizing the path of asylum seekers through the affirmative and defensive process can be found in Appendix 2.

Affirmative applications come from individuals already inside the US who are not in the process of being removed. Individuals could have entered the country on a legal visa, or entered without legal documentation. Affirmative applicants apply through US Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security. They undergo background and security checks to make sure they are not a threat to the United States, which would disqualify them from asylum status. Affirmative applicants meet with a USCIS officer to demonstrate their asylum case, and can bring legal counsel and evidence to support their claim. USCIS officers can grant asylum based on the meeting with the applicant. If the officer decides there is not sufficient evidence that the applicant qualifies for asylum, and the applicant does not have a valid visa to be in the country, they are referred to an immigration judge for deportation proceedings where they can also apply for the defensive asylum process. If the officer decides there is not sufficient evidence but the applicant has a valid visa to be in the country, the application is simply denied.

Figure 5: Outcomes of Affirmative Asylum Applications (2017)

Defensive applications come from individuals without a lawful method of entry into the US, either at a port of entry (like the southern border), or who entered the country without a visa and are in the process of being removed. As discussed in the Historical Overview section, defensive applicants at the US border are subject to expedited removal, where they have an interview with a USCIS asylum officer who determines whether they are likely to be granted asylum. If they are deemed to be not likely, they are immediately deported. Those who are likely to be granted asylum continue with the defensive process. Defensive applicants are processed by the Executive Office for Immigration Review (EOIR), an agency in the Department of Justice. The next step in the process is a hearing on the asylum application with an immigration judge. In the hearing, an attorney from Immigration and Customs Department (ICE) presents arguments for deporting the applicant, and the applicant or their representative can present evidence on behalf of their asylum claim. The immigration judge then makes a decision about the asylum applications.

The following chart demonstrates the structure of the different government bodies which are responsible for aspects of the asylum process.    

Figure 6: Structure of Government Involved in Asylum Processing

There are two main challenges associated with the defensive asylum process. First, a comprehensive investigation by the University of Pennsylvania Law Review found that access to representation was unequal across asylum seekers, but having representation made a significant difference in the outcome of the hearing. The researchers found that only 37% of defensive asylum seekers had legal representation, but those with representation were fifteen times more likely to secure asylum status. Asylum seekers who are poorer or located in rural areas were found to be disadvantaged in securing representation. While asylum seekers have the right to representation if they choose, in practice many do not have the opportunity to secure one because of their geographic location, financial situation, or if they are held in detention facilities prior to their hearing. Legal representation makes such a great impact because many asylum seekers are not familiar with the complex legal proceedings and do not speak English as a first language. The chasm between successful claims with and without legal representation suggests that the current system may be turning away valid asylum claims. A different reading of the facts could be that lawyers choose to work with applicants who they see as having strong cases for asylum.

Another challenge in the defensive asylum process is the disparity in outcomes based on the immigration judge assigned to adjudicate the case. A 2017 report on asylum outcomes by judge found that the outcome of an asylum case varies, on average, by 56% depending on the judge adjudicating the case. This means that “a typical asylum seeker might have only a 15% chance of being granted asylum all the way up to a 71% chance depending on the particular judge assigned to hear the case.” The variation in outcomes again indicates that people fleeing genuine persecution may be turned away from safety in the US, and that there is potential for individuals taking advantage of the system to receive asylum.

Figure 7: Approved Asylum Applications (1990-2018)

Work Authorization

Asylum-seekers whose claims take longer than 180 days to be processed are granted work authorization in the US until a decision has been reached, so that they are able to support themselves and their dependents. Prior to the 2019 Migration Protection Protocols, they were allowed to reside in the US or in detention facilities during the first 180 days, but not work.

Overloading the Asylum System

Figure 1: Asylum Applications and Acceptances (2012-2017)

As demonstrated by Figure 1, the caseload for both USCIS and EOIR has ballooned across the decade as instability in Latin America has led to a massive increase in asylum applications. The budget, facilities, and staff of both departments are not capable of processing three times as many cases in the same amount of time, leading to a backlog of tens of thousands of asylum cases. At the end of 2010 there was a 6,000 case backlog. At the end of 2018 the backlog stood at 645,000 cases. The average asylum application in 2018 took 1,071 days (almost 3 years) to reach a final decision.

In addition to the system being unequipped to handle the number of asylum claims that regularly occur, several structural challenges encourage additional asylum claims which only serve to bog down the system further. 

1. Because of the 180 days work visa rule, and the fact that almost all claims take longer than 180 days to process, there is an incentive for people without valid asylum claims to apply in pursuit of the US work authorization, expecting that it will take months or years for their case to be thrown out. 55,000 work authorizations were granted in 2012, but that number jumped to 270,000 in 2016 as the backlog increased and it took longer and longer to process a case. However, it is important to note that the majority of asylum seekers over the past ten years are families and unaccompanied minors, which are not the demographics who generally migrate in search of work. Single men are generally the demographic group migrating in search of work. This indicates that while some individuals are abusing the system, to gain work authorization, that is not indicative of the majority of asylum claims. 

2. The second structural challenge is a process called “cancellation of removal,” which creates additional work for USCIS to process. “Cancellation of removal” allows undocumented immigrants who have resided in the US for more than ten years to normalize their residency status because their deportation would cause hardship for a US citizen. The only way to apply for cancellation of removal is by being in the process of being deported. The process is:
   1. Apply for asylum affirmatively with USCIS (without expecting to be successful)
   2. Get turned down due to arriving in the country more than a year prior to applying 
   3. Get referred to the defensive process 
   4. Request the cancellation for removal. 

22,700 cases attributed to the cancellation of removal process were filed in 2016 alone, contributing to the asylum backlog.

Detention Centers

Individuals apprehended at the border or in removal processes are placed in immigration detention centers which are run by ICE, including asylum seekers applying through the defensive process. Asylum seekers can be released from detention centers by two methods; parole or bond:

1. Parole: The Department of Homeland Security has directed ICE to release asylum seekers on parole at the discretion of the ICE agent. The agent should take into account if the asylum seeker is a flight risk, and if it is “in the public interest” to keep them detained because they are a danger to the community. From 2011 to 2013, 92% of asylum seekers were paroled. Since 2017, 4% of asylum seekers across five main detention centers have received parole. In a detention center in New Orleans, 24.5% of parole applications were denied in 2016, while 100% were denied in 2019. 
2. Bond: Asylum seekers can also be released on bond, based on factors like flight risk and previous court appearances. The minimum bond amount is $1,500, which is out of reach for many asylum seekers.

The combination of increased asylum applications, longer processing wait times, and decreased parole means that the size and cost of detention centers is steadily increasing. In 2019, ICE detention centers cost $3.2 billion directly, and appropriated more funding from other agencies within the Department of Homeland Security. The Trump administration requested $4.1 billion for ICE detention centers for 2021.

Figure 8: Population of Detention Centers

Reforms Under the Biden Administration

During the campaign, Biden made numerous promises in regard to immigration, refugee, and asylum policy. Some of these promises included $4 billion in aid to the Northern Triangle countries, ending the Trump administration’s “zero tolerance policy,” and increasing the refugee cap by 15,000. Since coming into office in January 2021, the Biden administration has implemented the following policies.

• Family Reunification Task Force: On February 2nd, 2021, President Biden signed an executive order establishing a task force with the mission of working “across the U.S. government, with key stakeholders and representatives of impacted families, and with partners across the hemisphere to find parents and children separated by the Trump Administration.”
• Revoked the Migrant Protection Protocols: In addition to the previous executive order, President Biden also signed one that ended the MPP which, commonly referred to as “remain in Mexico,” forced asylum seekers to stay in Mexico as their applications were processed. As one of the first moves by the Biden administration, newly appointed Secretary of Homeland Security Alejandro Mayorkas ended the practice. Secretary Mayorkas stated as his reasoning that the MPP “does not adequately or sustainably enhance border management in such a way as to justify the program’s extensive operational burdens and other shortfalls. Over the course of the program, border encounters increased during certain periods and decreased during others.”
• Changes to Legal Immigration System: The final executive order President Biden signed focused on the legal immigration system and removing a Trump administration policy that required family sponsors to repay the government if relatives received public benefits. This Trump administration policy made it so “applications for some immigrants, including those wishing to seek permanent legal residency, could be rejected it if the immigrant received public benefits for more than 12 months within any 36-month period and if ‘at the time of application for admission or adjustment of status, is likely at any time to become a public charge.’” This executive order also reinstated an Obama administration task force that was focused on assisting immigrants and refugees in their transition to American life.

Central American Regional Security Initiative

The Obama administration consolidated previous aid and security programs to create the Central American Regional Security Initiative (CARSI) in 2010. According to the State Department, these are “the Five Goals of CARSI in Central America:

1. Create safe streets for the citizens of the region;
2. Disrupt the movement of criminals and contraband to, within, and between the nations of Central America;
3. Support the development of strong, capable, and accountable Central American governments;
4. Re-establish effective state presence, services and security in communities at risk; and
5. Foster enhanced levels of coordination and cooperation between the nations of the region, other international partners, and donors to combat regional security threats.”

In summary, the CARSI was intended to mitigate the factors which force people to seek asylum. The initiative was aimed at working with governments to not only address US security concerns, but also improve the social and economic factors which led to violence, asylum seekers, and drug trafficking. Preliminary data suggested that while CARSI had initial positive effects like reducing homicide rates and corruption and improving national GDP, it was a long way from reaching US security goals. A long term commitment appears necessary to achieve those goals.

In 2019, the Trump administration cut most aid to Northern Triangle countries (including CARSI) in response to the continued applications for asylum from those countries. In order to restart aid, the nations were asked to negotiate “safe third country agreements,” whereby asylum seekers could be sent to those countries to apply for asylum rather than being granted asylum in the US. The United States has a safe third country agreement with Canada, and member states of the European Union have a similar agreement with each other, but this situation is different in that all three of these countries produce large numbers of asylum seekers. Under these agreements, a family who fled Honduras after MS-13 attempted to recruit their son by force could be sent to a town in Guatemala which is also controlled by MS-13.

Read More

• Read the Congressional Research Service’s reports on migration from Central America and asylum policy
• Learn more about the ways that the reforms to asylum under the Trump administration work to limit access to asylum
• Read the University of Pennsylvania study on legal representation in the asylum process
• The Migration Policy Institute wrote a report analyzing the factors leading the breakdown of the US asylum system
• Read a report on the conditions in detention centers

Policy Alternatives

Combatting the Backlog of Applications

Many feel that the most urgent challenge to be addressed is the backlog of asylum applicants, which is hundreds of thousands strong. Vulnerable people are left in limbo and the backlog protracts dangerous situations for months or years. In addition, accumulating a growing backlog every year causes the American public to lose confidence in the ability of the government to enforce immigration and asylum laws. 

Two potential reforms could help reduce the backlog:

1. In 2018 USCIS began implementing a “last in, first out” policy, where applications are processed starting with newer applications and working backwards, rather than processing applications in chronological order. This policy quickly weeds out unnecessary applications filed with the expectation of a work visa, and deters future fraudulent claims. However, there are concerns that that “last in, first out” is unfair to people with valid asylum claims who have been waiting years for their chance at a hearing, only to be placed at the back of the line once again. For this reason, “last in, first out” is a short term fix to deal with the crisis, not a sustainable solution to the problem that more asylum claims come in annually than the system is equipped to process. 
2. The affirmative and defensive processes could be streamlined by creating a separate path for cancellation of removal applications. Currently, the most efficient way for undocumented immigrants to apply for a cancellation of removal is by being rejected for asylum. A separate application would save USCIS and EOIR from having to process thousands of unnecessary claims every year.

Fairness in Adjudicating Claims

The variation in adjudication outcomes based on the presence of legal representation and the judge in question has concerning implications for the efficacy of the current system. One way to combat the variation from judges is to create more standardized measures for weighing asylum claims. In the status quo, the standard of a “well-founded fear of persecution” is not legally defined, and is interpreted by each judge. In addition, USCIS and EOIR could record statistics about the results of hearings nationally, and flag judges whose decisions verge drastically from the average for a country. Those judges could experience additional training, or else have their decisions automatically reviewed. 

The variation from legal representation has a more difficult fix. The federal government could guarantee representation for all applicants, similar to the way all citizens in criminal trials have the right to an attorney. This would require up-front investment in the form of paying the equivalent of public defenders for asylum seekers who did not secure their own representation, and could pay off in the long run. Applicants without representation often file many different types of claims in a scattershot attempt to find one that will be granted, as opposed to applicants with representation who only file the claim which they see as applicable. One major delay in asylum processing is the time it takes for detained asylum seekers to attempt to get legal representation. During this time, they remain in tax-payer funded detainment centers for days or weeks. Finally, attorneys can guide clients through the complex legal process so that the court runs efficiently. All of these factors lead some to suggest that the cost of providing public defenders would pay for itself by decreasing the time which asylum seekers spend in courtrooms and detainment centers.

Reforming Detention Centers

Detention of migrants, including asylum seekers, comes at a great cost to the American taxpayer. The detained population could be reduced by increasing the use of parole and bond release. 

• Families and children, especially those who secure legal representation, are not “flight risks” and appear for their hearings upwards of 96% of the time. Many feel there is little value in keeping these people in detention centers.
• For individuals who pose a greater risk of skipping their hearing and remaining in the country in an undocumented capacity, ICE could expand its use of monitoring devices, which it is already authorized to use.

 In summary, the most cost-effective option is to reserve detention centers for individuals who pose a genuine risk to the community, as defined by the Department of Homeland Security guidelines, and asylum seekers (primary families and unaccompanied minors) rarely fall into that category.

Reducing the population of detention centers could go hand in hand with reforming the centers to support humane living conditions. There are two main arguments for doing this: 

1. The obligation to provide a safe environment for those submitting asylum applications is a matter of American and international law, as discussed in the Historical Overview.
2. Many of the people in detention centers have valid asylum claims which are eventually approved. They are less capable of contributing to their new host country after the trauma of several months in overcrowded, unsanitary and unsafe conditions.

Capping the Number of Asylum Seekers

Some types of legal permanent resident applications in the US have pre-set quotas for how many applications can be approved each year. Refugees fall into this category, as do employment and diversity visas, among others. Immediate family visas (visas for the spouses, unmarried minor children, and parents of US citizens) and asylum seekers do not have quotas, and instead every eligible person who applies is granted legal permanent resident status, limited only by the time it takes to process the application, which can take years. One policy change suggestion is to create a quota for asylum seekers, to limit the number of people who enter the country. This would give the US government more control over the number of people accepted through the asylum channel. Some Americans have a negative response to the idea of taking an unlimited number of people, even though asylees make up only a fraction of total immigrants annually. Some are also concerned that an asylum system without caps incentivizes more people to make asylum claims, even if they are not actually facing persecution.

There is some international precedent for limiting the number of asylum seekers accepted into a country. For example, the European Union created an arrangement with Turkey in 2016 to respond to the refugee crisis and the millions of asylum seekers attempting to make their way to Europe through Turkey. In this deal, Turkey sheltered the displaced population and EU countries resettled as many as they felt capable of handling (Germany accepted more than a million). The EU provided 6 billion Euros to support the displaced population in Turkey. Following the end of the civil war in Syria (the main cause of displacement), the majority of the displaced population in Turkey is expected to return to Syria. You can read more about this agreement in the EU-Turkey Migration Agreement brief.

If the US implemented an asylum quota it would continue to see the same problems which appear with the metering strategy. This looks like already-vulnerable people waiting in Mexican border towns who are susceptible to gang and sexual violence. Mexico is not as safe or as stable as Turkey, and it does not have the capacity to shelter the displaced population. Moreover, the United States would likely need to match the billions of dollars in aid which the EU supplied to Turkey in order to avoid straining Mexico’s resources past the breaking point.

Capping the number of asylum seekers accepted annually, when asylum currently makes up a relatively small amount of US immigration, could be perceived by American allies as an extreme response to the situation. The United States is already perceived as doing less than its fair share on the global stage due to its record low refugee cap, which put much of the burden of the recent refugee crisis on European allies.

Creating stable environments in other countries

Another option to reduce the number of applicants for asylum in the US is to improve the stability of the countries where people are fleeing. The main country of origin for successful asylum seekers is China, making up 20.9% of successful asylum applications in 2017. However there is no clear path for reducing persecution on the part of the Chinese government. The Northern Triangle countries (Honduras, Guatemala, and El Salvador) collectively accounted for 22.2% of affirmative and 64% of defensive asylum applications which totalled more than 107,000 applications in 2017, making these countries a logical starting place for reducing overall asylum applications.

The CARSI plan (2010-2019) was an attempt to stabilize the region, and as noted in the Current Policies section, had some success prior to its untimely end. If the US is serious about mitigating the conditions which lead to asylum applications on the southern border, it should restart the aid program targeted at strengthening law enforcement, ending corruption, and reducing poverty.

Read More

Doctors Without Borders wrote a report documenting the violence faced by asylum seekers awaiting their hearing from Mexico through the Migrant Protection Protocols.

Appendices

Appendix 1: Base data for graphs

Figure 1: Asylum Applications and Acceptances (2012-2018)

Year	2012	2013	2014	2015	2016	2017	2018
Accepted Applications	28,115	25,151	23,374	26,124	20,340	26,568	38,687
Total Applications	61,783	67,858	88,002	129,102	184,555	262,622	216,883

Figure 4: Poverty Rate in the Northern Triangle

Country	Guatemala	El Salvador	Honduras	USA
Poverty Rate	49.1	35.5	54.9	1.7

Figure 5: Outcomes of Affirmative Asylum Applications (2017)

Year	Granted	Denied	Referred to Immigration Judge
2017	13,105	116	28,928

Figure 7: Approved Asylum Applications (1990-2018)

Year	Total	Affirmative	Defensive
1990	8,472	5,672	2,800
1991	5,035	2,908	2,127
1992	6,307	4,123	2,184
1993	9,540	7,506	2,034
1994	13,826	11,773	2,053
1995	20,697	17,567	3,130
1996	23,525	18,617	4,908
1997	22,933	16,374	6,559
1998	20,520	13,229	7,291
1999	26,578	18,157	8,421
2000	32,542	23,306	9,236
2001	39,179	29,178	10,001
2002	36,977	26,000	10,977
2003	28,791	15,415	13,376
2004	27,426	14,404	13,022
2005	25,349	13,592	11,757
2006	26,398	13,094	13,304
2007	25,334	12,475	12,859
2008	23,026	12,134	10,892
2009	22,314	12,014	10,300
2010	19,772	11,253	8,519
2011	23,572	13,434	10,138
2012	27,951	17,376	10,575
2013	25,014	15,247	9,767
2014	23,371	14,735	8,636
2015	26,015	17,847	8,168
2016	20,362	11,634	8,728
2017	26,509	15,846	10,663
2018	38,687	25,439	13,248

Appendix 2: Navigating the asylum process