What is Asylum?
Asylum is a form of protection granted to individuals in the United States who meet the international definition of a refugee: a person unable or unwilling to return to their home country due to a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. The U.S. asylum system offers two primary pathways for individuals seeking refuge: affirmative asylum, where individuals apply proactively through the U.S. Citizenship and Immigration Services (USCIS), and defensive asylum, where individuals request asylum as a defense against removal proceedings in immigration court. The process is complex and often lengthy, requiring thorough documentation and evidence to substantiate claims.
Recent developments
On June 4, 2024, President Biden issued a proclamation and accompanying federal rule that imposes a strict and arbitrary limit on the number of people permitted to seek asylum at the U.S.-Mexico border between ports of entry. These changes, effective immediately, complicate the asylum process for those fleeing persecution and will likely result in the deportation of thousands seeking safety.
These changes mirror policies from the Trump administration, which were twice ruled illegal by federal courts for contradicting U.S. asylum law.
The new rule makes several significant changes
1. Numerical Cap: If the Department of Homeland Security (DHS) encounters an average of more than 2,500 people between ports of entry per day over a seven-day period, anyone entering without a CBP One app appointment will be banned from applying for asylum. This ban remains until fewer than 1,500 people are stopped at the border for seven consecutive days. Exceptions are made for unaccompanied children, trafficking victims, and those with acute medical emergencies or imminent threats to their lives.
2. Manifesting Fear: While the asylum ban is in effect, Customs and Border Protection (CBP) will not screen individuals for fear of return unless they proactively “manifest” their fear. This requirement is problematic, as many asylum seekers are unlikely to express their fear to armed officials due to intimidation or trauma. Even those who do express fear will only be eligible for limited, temporary protection under heightened standards.
3. Restricted Access: The rule expands an existing asylum ban, further restricting asylum access for those without pre-approval or CBP One appointments. It narrows exceptions for people unable to use the CBP One app, making it harder for those with health, safety, or technological barriers to seek asylum.
4. Increased Screening Standards: The rule raises the screening standard for asylum seekers, reversing Biden’s previous stance against similar Trump-era policies. Now, the standard is higher than Trump’s, making it extremely difficult for those not immediately turned away to qualify for protection.
The rule’s requirements and increased burdens add significant challenges for people arriving at the U.S.-Mexico border seeking asylum. Those unable to articulate their fear due to language barriers, mental or physical disabilities, or other vulnerabilities will likely be deported without protection screenings.
In my opinion, these policies violate U.S. law, which mandates that any person can seek asylum regardless of their entry manner. The rule relies on sections 212(f) and 215(a) of the Immigration and Nationality Act, and I contend this rule does not override the statutory right to seek asylum. Additionally, the policies contradict the United States’ international obligations under the Refugee Convention.
The Biden administration’s actions echo Trump-era policies, including the 2018 asylum ban and the Muslim and African bans, both of which faced legal challenges. Despite Biden’s initial revocation of these policies, recent moves indicate an increasing alignment with the Trump agenda on asylum rights, further harming marginalized populations and undermining legal protections for asylum seekers.
Immigration courts overwhelmed with the numbers of Asylum seekers
The number of pending immigration court cases in the United States rose to more than 3 million in November 2023, setting a new record, according to the Syracuse University’s report. The backlog increased by a staggering one million cases from December 2022 to November 2023. For comparison, the backlog grew by approximately 50,000 cases between fiscal years 2013 and 2014.
The report highlights the overwhelming workload facing immigration judges, who now average 4,500 pending cases each. “Immigration Judges are swamped,” the report states. To put this in perspective, if all individuals with pending immigration cases were gathered in one place, they would outnumber the population of Chicago, the third largest city in the United States.
Florida and Texas have the largest immigration case backlogs, with Florida home to 454,434 pending cases and Texas to 426,901 as of November 2023. The states with the next highest case loads are California, New York, and Illinois. Across the nation, the most common nationalities among those with pending cases are Venezuelan, Mexican, Honduran, and Guatemalan.
Here are the states with the largest immigration court backlogs:
1. Florida: 454,434
2. Texas: 426,901
3. California: 327,743
4. New York: 322,021
5. Illinois: 192,044
6. New Jersey: 176,104
7. Massachusetts: 144,721
8. North Carolina: 119,025
9. Georgia: 117,861
10. Tennessee: 111,894
The U.S. immigration system’s structure means that states have little control over their number of pending cases. Immigration courts, part of the Department of Justice, are tasked with adjudicating cases involving noncitizens charged by the Department of Homeland Security with violating immigration laws. Judges decide whether individuals should be allowed to remain in the U.S. or if their applications to avoid deportation, such as asylum requests, should be granted. This centralized system results in significant backlogs concentrated in certain states, with courts overwhelmed by the volume of cases.
Sources:
These States Have the Largest Immigration Court Backlogs | Best States | U.S. News