The federal government announced this week that it is going to fast-track recently filed asylum requests as a means to help eliminate the extreme backlog of applicants that make the system susceptible to fraud.
But immigration attorneys and immigrant rights groups say the change is nothing more than a strategy designed to discourage people from seeking "affirmative asylum" in the U.S., even if they enter the country legally. That's because most asylum cases are denied and under the recent change, even a person with a legitimate claim could be sent into removal proceedings immediately.
Unlike "defensive asylum," where a person requests protection after showing up at a port of entry without documents or is apprehended after entering the country illegally, affirmative asylum applies to people who at one time were given permission to enter. After gaining entry to the U.S., a person asking for affirmative asylum applies at an immigration office, which is less adversarial than pleading his or her case during removal proceedings.
United States Citizenship and Immigration Services said this week that it would begin processing recent applications ahead of older ones that have been pending, in some cases, for years. The agency said in a statement that as of Jan. 21, it faces a “crisis-level backlog “of 311,000 pending cases, which represents a 1,750 percent increase over the last five years. The USCIS designates the change as a return to the “priority approach,” which was established in 1995 but discontinued in 2014.
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To qualify for asylum, applicants must have suffered persecution at the hands of a group that the government cannot or is not willing to control. Applicants must also show they are being targeted because of their race, religion, nationality, membership in a political group or political opinion.
If an applicant's request remains pending after six months, they might be eligible to work in the country while their case meanders through the immigration court system. The agency said the change will deter people from using the backlog only to obtain that work authorization under false pretenses.
“Delays in the timely processing of asylum applications are detrimental to legitimate asylum seekers,” said USCIS Director L. Francis Cissna. “Lingering backlogs can be exploited and used to undermine national security and the integrity of the asylum system.”
The agency will prioritize applications that had to be rescheduled, either by the USCIS or the applicant. Then it will consider applications that have been pending 21 days or fewer, and then consider all other pending applications.
El Paso-based immigration attorney Carlos Spector said the USCIS change will speed up removals of people who could have legitimate claims and come to the country legally, which will undoubtedly affect the number of people seeking asylum in Texas. He represents several Mexicans who have sought refuge in the U.S. after their work as reporters or as human rights activists marked them for death in Mexico. Spector has been successful on several occasions, but says that according to asylum statistics, that’s not usually the case.
“These are people that have entered the country legally and then decided to file and so to discourage that they’ll say ‘OK, you want a quick hearing, you’re going to get it,’” he said. “And what that means is that you’re going to get it denied. And so I think that it’s an underhanded way to accelerate removability.”
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During the 2016 fiscal year, federal immigration officials received 12,831 asylum applications from Mexicans, according to statistics published by the Executive Office for Immigration Review. The same year it granted only 464, denied more than 2,620 and about 2,615 were withdrawn.
The change in policy comes after President Donald Trump included asylum process reforms on his list of immigration priorities in October. They included “penalties for the filing of frivolous, baseless, or fraudulent asylum applications, and expand the use of expedited removal as appropriate.”
The advocacy group Human Rights First said the change could create a system where refugees awaiting a final resolution of their cases could be made to wait even longer if they aren’t given priority.
“We urge USCIS to ensure a fair process for those asylum seekers with pressing humanitarian needs—such as children stranded abroad and those with medical concerns — to request and receive a timely interview,” said Eleanor Acer, Human Rights First’s senior director of refugee protection.
Spector said he agrees that the backlog is a problem. But he said the appropriate remedy would be to hire more officials to take the cases on, not let fewer credible people in.
“They’re looking to have a policy to curtail future affirmative asylum applications, and are just seeing the old ones as dead weight,” he said. “Generally the [solution ] would be to hire more asylum officers and more judges. One of the solutions would be to create immigration courts that are only assigned to solely do asylum hearings. But again, the enforcement side is always bolstered, not the relief side.”