Saving Lives, Ending Inefficiencies

Steps to Strengthen the U.S. Asylum Adjudication System

Overview

People seeking asylum in the United States now face multi-year delays as they wait for their asylum interviews and hearings. After filing asylum applications with U.S. Citizenship and Immigration Services (USCIS), people often wait over six years for an interview with an asylum officer, according to a 2023 survey by the American Immigration Lawyers Association (AILA). The experience of Human Rights First pro bono clients confirms these findings, with those scheduled for interviews over the past year in many cases having waited six to eight years. The same AILA survey concluded that people seeking asylum in immigration court wait an average of four years for their final hearing before an immigration judge. At the start of 2024, both the USCIS asylum office and the immigration courts had backlogs of over one million asylum applications each.

Long wait times for asylum adjudications are traumatizing and debilitating, and can be catastrophic, for people seeking asylum and their families. People stuck waiting in the asylum office and immigration court backlogs are trapped in legal limbo without permanent status and left to live in fear that they could be deported to persecution or torture, as Human Rights First has detailed in prior reports. Refugee families also suffer prolonged separations, as they must wait years for the asylum grants necessary to petition to bring spouses and children to U.S. safety. Due to these lengthy wait times, family members are left stranded in often dangerous and difficult situations. Many people seeking asylum are also unable to pursue educational opportunities or secure employment while waiting. Medical and torture treatment experts have urged steps to end these delays due to the trauma they inflict on an often already traumatized population.

Some politicians have attempted to use the asylum backlogs and delays to justify steps to deprive asylum seekers of due process or impose deadlines that deny people seeking asylum the time they need to gather evidence, prepare their legal submissions, and secure legal representation. The reality though is that due process, realistic timelines, and the small portion of cases that seek judicial review from federal courts did not cause these backlogs. These backlogs have grown, notwithstanding statutory and regulatory deadlines that require asylum interviews within 45 days of the filing of the asylum application and immigration court hearing completion within 180 days.

In reality, the massive asylum delays and backlogs are caused by:

• The chronic failure over many years to adequately staff and fund asylum adjudications before USCIS and the immigration court;
• Round after round of added barriers and requirements that have complicated, lengthened, and delayed asylum adjudications over the years;
• The redeployment of an overwhelming majority of asylum officers away from conducting actual asylum adjudications to perform expedited removal and other screening processes instead; and
• The increase in people fleeing their countries in search of refuge — a global and regional development, though the overwhelming majority are hosted in other countries.

Rather than denying people seeking refuge due process and access to life-saving asylum, the Biden administration and Congress should take steps to address the actual causes of asylum backlogs and delays and to remedy system-wide inefficiencies. Critically, the Biden administration should overhaul the asylum system so that more cases that are eligible for asylum are resolved at the asylum office level rather than unnecessarily added to the immigration court backlog. As the USCIS Ombudsman flagged in a June 2022 report, “most asylum cases referred from USCIS are ultimately granted by an immigration judge.”  By resolving more eligible cases through initial asylum office interviews, the government will save resources and reduce the number of people referred to removal proceedings, while preserving the right of asylum seekers to full removal hearings in immigration court if the asylum office does not grant them relief.

In addition, the Biden administration must focus more on working with Congress to remedy the resource gaps that impede timely and fair asylum adjudications, and end and reject policies that impose counterproductive, unnecessary barriers that complicate and delay adjudications.

Summary of recommendations

The steps outlined in these recommendations will lead to a more accurate, efficient, timely, and fair asylum system. The Biden administration should:

1. Resolve more asylum-eligible cases at the USCIS asylum office level, so they are not unnecessarily and inefficiently added—or “punted”—to already backlogged immigration courts. Steps include:
   

• Additional asylum officer and supervisor training on the USCIS Asylum Division’s role in the adjudication system’s overall efficiency and steps to address patterns of unnecessary referrals; and
• Strengthen the Biden administration’s asylum processing rule by fixing unworkable counterproductive timelines so that the process leads to increased efficiency, rather than rushed, mistaken decisions that add to court backlogs and inefficiency.

2. Improve USCIS Asylum Division adjudication efficiency:

• Develop and leverage efficiency tools such as country conditions analyses applicable to persecuted religious, ethnic or other groups, focused interview guidance for specific caseloads as the USCIS Ombudsman recommended, and “pattern and practice” analysis for persecuted religious, ethnic, political, or other groups in a particular country that would generally have well-founded fears of persecution;
• Identify factors contributing to unduly long interviews, and develop interview tools, trainings, mentoring, and other steps to conduct more efficient interviews;
• Replicate relevant technological, country-of-origin research or other efficiencies and streamlining tools employed in Refugee Corps and Afghan asylum case adjudications, as well as Afghan support center model for other populations;
• Reduce USCIS Asylum Division asylum officer retention losses; and
• Create an application process for “cancellation of removal” so such cases are not initiated through asylum filing.

3. Strengthen immigration court effectiveness and efficiency:
   

• Further ramp up use of prehearing conferences to narrow trial issues, and stipulations on uncontested issues, to reduce the number and length of hearings;
• EOIR should create an electronic scheduling system to allow asylum seekers and their counsel to easily request to schedule merits hearings in available slots on immigration court judges’ dockets;
• Continue to use administrative closures and termination where cases can be resolved by USCIS, but only with consent of the individual or counsel; and
• Avoid counterproductive “rocket dockets,” “dedicated dockets,” or other rushed dockets that exacerbate backlogs and undermine accurate decision-making, efficiency, access to counsel, and due process.

4. Work with Congress to fund necessary capacity for merits asylum adjudications:
   

• Secure robust and sustainable funding to ensure the timely adjudication of asylum cases. These capacities should include immigration court staff, interpreters, immigration judges, and USCIS asylum officers to conduct full asylum adjudications, as well as funding for legal representation for indigent immigrants.
• Ensure asylum officers conduct asylum interviews. The massive deployment of asylum officers away from asylum adjudications to instead conduct the USCIS screening component of expedited removal cases must be remedied, ideally by ending or limiting the use of due process deficient expedited removal. To the extent expedited removal is employed, USCIS should be funded for its portion of that process to guard against it continuing to create new or exacerbate existing backlogs and delays.

5. Tackle the Backlogs: 

• Secure appropriations, dedicate staff to backlog reductions, and use adjudication efficiencies outlined above to more quickly resolve caseloads;
• At the Asylum Division, prioritize applications pending the longest for interview while also scheduling interviews for child applicants and other recently filed applications; and
• Create an effective process to advance asylum interviews for applicants with medical, humanitarian, or other pressing concerns, including family members in dangerous or difficult situations abroad, and ensure access to advance parole for applicants with emergent reasons to travel abroad temporarily.

6. Reject counterproductive requirements and barriers in the asylum system:

• Support reforms to end and reject additional legislative or administration policies that erect unjust and unnecessary barriers to asylum that compound complexity, delays, and backlogs.

7. Advance efficiency, fairness, and consistency with international law through long-necessary regulatory action: 

• Initiate rulemaking to safeguard the protection of persecuted social groups and ensure compliance with international refugee law – a critical step that will reduce mistaken rulings, unnecessary litigation, inconsistencies, and inefficiencies; and
• Rescind counterproductive policies that punish and block people seeking refuge as well as deny them a path to citizenship.

Download the full set of detailed recommendations below.