Astounding Asylum Numbers in DOS Refugee Report for FY 2021

Center for Immigration Studies

October 28, 2020

Art Arthur

The Department of State (DOS) — with the Department of Homeland Security (DHS) and Department of Health and Human Services (HHS) — transmitted their Report to Congress on Proposed Refugee Admissions for Fiscal Year 2021 on September 30. My colleague Nayla Rush broke down that report, and the changes that the Biden-Harris ticket has proposed to the number of entries, in an October 6 post, but three statistics stick out therein: the number of aliens seeking asylum from DHS, the number seeking asylum as relief from removal from the immigration courts, and the credible fear grant rate in FY 2020.

Aliens who are present in the United States may seek what is called “affirmative asylum” from asylum officers (AOs) in U.S. Citizenship and Immigration Services (USCIS), an agency in DHS. AOs may grant or deny those aliens asylum.

If an AO opts not to grant the alien asylum, and the alien is removable (as most are), the AO can refer the alien to immigration court (part of the Executive Office for Immigration Review (EOIR) within the Department of Justice (DOJ)), for the alien to renew that application as a defensive application (relief from removal) in removal proceedings.

In addition to adjudicating those affirmative asylum applications, AOs also consider “credible fear” claims for aliens in expedited removal proceedings under section 235(b)(1) of the Immigration and Nationality Act (INA). Those AOs can find that the alien has credible fear (in which case the alien is referred to immigration court to file an asylum application before an immigration judge (IJ) in removal proceedings), or determine that the alien does not have credible fear (in which case the alien can ask an IJ to review the AO’s decision).

There were an average of 500 to 550 AOs at USCIS in recent years (USCIS is authorized for 745 AOs), but last year USCIS announced that it planned to hire 500 new employees in the asylum branch of the agency (half of whom would be AOs; the rest staff), and, as of October 2019, they were on track to meet that goal. In a February 2020 report, however, the Government Accountability Office (GAO) was critical of USCIS’s efforts to train those AOs to perform credible fear screenings.

The number of such credible fear referrals skyrocketed in FY 2019, as almost one million aliens entered the United States illegally along the Southwest border or sought entry without proper documents at the ports of entry along that border. As GAO noted: “The number of referrals for credible fear screenings in the first two quarters of fiscal year 2019 alone was larger than the total number of referrals in each of fiscal years 2014 and 2015.”

In fact, AOs completed 5,523 credible fear cases in FY 2009, but in FY 2019, it completed 102,204 (out of 105,439 cases received) — a more than 1,750 percent increase. To help out, DHS assigned refugee officers, former AOs, and (in a controversial move), Border Patrol agents to handle interviews. A federal judge blocked that last effort in August.

All of which brings me back to the DOS report. As of August 31, according to the department, there were 598,692 asylum claims (in addition to credible fear claims) pending with USCIS. Assuming that there were the authorized 745 AOs on that date (the actual number — a moving target — is hard to find), that means that each AO is assigned almost 804 cases to adjudicate — not counting new cases that will be added.

In my experience, AOs generally take two hours to conduct interviews and complete about two per day, but USCIS’s statistics show a much lower completion rate. In September 2019, according to USCIS, AOs conducted 2,799 interviews and completed 6,286 cases. Assuming that there were 500 AOs at the time (likely on the low side), that means they each held 5.6 interviews each that month and completed 12.6 cases per capita — much fewer than one a day.

On top of the AOs’ asylum workload, according to DOS, there were 549,724 asylum claims (as of June 30) pending with the nation’s 520 IJs (the latter as of October — 20 new IJs were on-boarded on October 9, meaning that the number in June was actually closer to 500).

Again, that means that each IJ is assigned 1,057 asylum cases. As a former IJ, I generally completed one to two asylum cases per day, and at best IJs can hear approximately four (assuming that the alien shows up and is ready to go at the merits hearing date, which does not always happen). Consequently, as the Transactional Records Action Clearinghouse (TRAC) reported, in 2019 asylum applicants in immigration court on average waited almost three years for their cases to be decided, time that they will spend in the United States — and a timeframe that does not count appeals.

And, again, the DOS report does not count any new asylum cases that have been filed in the interim in immigration court.

Combined, however, these statistics show that there were 1,148,416 pending asylum cases in the United States — at a minimum. If those applicants were a state, they would be the 43rd largest in the United States, ahead of Montana, Rhode Island, Delaware, the Dakotas, Alaska, Vermont, and Wyoming.

Plus, as the foregoing shows, an asylum applicant denied by USCIS can renew his or her claim with the immigration court. In September 2019, for example, AOs approved 34 percent of the asylum claims they adjudicated (1,501), and referred (for one reason or another) 66 percent (2,901). Those cases — assuming that the aliens actually appear in immigration court — will end up on the IJs’ dockets.

This is a hole that the AOs and IJs will not be able to dig themselves out of without a massive increase in resources.

The Trump administration has, in fact, increased the total number of IJs by 70 percent and, as noted, has at least tried to increase the number of AOs by 50 percent. Joe Biden vows to double the number of IJs (as well as the number of EOIR staff and interpreters), but that hiring will take time and a significant increase in resources — resources Congress, which is stingy when it comes to immigration, may not fund. Much more here.

Biden has been known as a moderate voice in the modern Democratic Party, willing to strike deals by reaching across the aisle. On immigration, his career NumbersUSA immigration-reduction grade of a D, while not good, places him in the middle of all Congressional Democrats since 1990. But compared with current Congressional Democrats, Biden would rank among the best 10%.

Unfortunately, instead of attempting to convince the more progressive wing of the Party that moderation on immigration is a more popular position, the “unity plan” capitulates to the radical wing of the Party that supports policies that would effectively create open borders. The days of Barbara Jordan’s Democratic Party that put the interests of American workers ahead of foreign workers and the businesses that profit from cheap labor are long gone.

LEGAL IMMIGRATION

While Biden refers to the Gang of 8 plan multiple times throughout his immigration platform, he forgets that one of the few bright spots in the Gang of 8 plan was its elimination of the Visa Lottery. Both his official plan and the “unity plan” call for the continuation of the Lottery.

We believe we should … preserve the critical role of diversity preferences in our immigration system.

Biden also calls for an increase in the number of employment-based green cards, including an exemption from the numerical limits for foreign students who graduate from U.S. colleges and universities with an advanced degree.

He calls for changes to the family chain migration categories, including exempting spouses and children of green card holders from numerical limits without offsets and issuing visas and work permits to any extended family members on the family-preference backlog due to annual caps.

Biden further calls for an increase of the H-1B higher-wage guest worker program and the streamlining of the H-2 guest worker programs.

Lastly, Biden adopts the Libertarian plan that was pushed by Democratic hopeful Pete Buttigieg to create a new visa program for states and local communities to utilize for “economic development”. One key goal of this is to add immigrants into depopulated cities that Americans have been fleeing.

Biden’s call for more immigration and guest workers, especially when nearly 50 million Americans have filed for unemployment since February and the nation faces months, if not years, of economic uncertainty, is a slap in the face to American workers of all skills.

AMNESTY

During the debates last fall, Biden was one of the few Democratic hopefuls who still believed in the rule of law. While most of the candidates for the Party’s nomination sought to abolish ICE and decriminalize illegal border crossings, Biden at least recognized that immigration enforcement is necessary.

He apparently no longer does.

Biden has adopted the Sanders’ plan to halt all deportations during the first 100 days of his presidency. In other words, he’s offering a 3-month open invitation for anyone in the world to come to the United States, so they can take advantage of the massive amnesty that he also promises.

Supporting an amnesty for nearly every illegal alien in the United States is not a new position for Biden; he called for a mass amnesty during the debates, and in 2013, he supported the Gang of 8’s mass amnesty bill. Highlights of his plan include speedier amnesties for “Dreamers” and agricultural workers, while adopting a bipartisan House plan that would force existing illegal Ag workers into indentured servitude before receiving their amnesty…. Read the rest here from NumbersUSA.com. 

“Each year, about three thousand undocumented students graduate from high school in Georgia,…”

Here from the New Yorker magazine, May, 2017

More than 90% of illegal arrested arrested by federal agents in the United States last year had criminal convictions or pending criminal charges, including 56,000 assaults and thousands of sex crimes, robberies, homicides and kidnappings.

Many had “extensive criminal histories with multiple convictions,” according to Immigration and Customs Enforcement’s (ICE) year-end report. The 123,128 illegal aliens arrested by the agency’s Enforcement and Removal Operations (ERO) in 2019 had 489,063 criminal convictions and pending charges, representing an average of four crimes per alien, highlighting the “recidivist nature” of the arrested aliens, the agency writes, noting that sanctuary cities nationwide greatly impeded its public safety efforts.

Here.

Ruling likely will lead to additional legal action on public benefits

DACA recipients are “inadmissible and thus removable” under federal law.

Illegal aliens who have been awarded deferred action on deportation proceedings through the DACA amnesty by both the Obama and Trump administrations are illegal aliens and do not have “lawful presence” says the 11th Circuit Court of Appeals. The decision was handed down March 6, 2019.

The ruling was in response to a suit brought by several illegal aliens in Georgia who are challenging the Board of Regents policy that requires lawful presence for instate tuition purposes and admittance to some USG universities.

According to the U.S. Department of Homeland Security Georgia is home to more illegal aliens than is Arizona. Statistics from the Washington DC – based Migration Policy Institute highlighted by the Georgia Budget and Policy Institute indicate that Georgia has more illegal aliens than green card holders.

A group of DACA recipients sued the leaders of the Georgia higher education system in 2016, which bars aliens who are not “lawfully present” from enrolling in some Georgia colleges and universities, even if they would academically qualify for admission. “The students argued that they were lawfully present under federal law, which preempted  state law. They also claimed that the admissions bar violated their right to equal protection, as Georgia treats aliens who are paroled into the U.S. or granted asylum as “lawfully present,” reported the Immigration Reform Law Institute.

The Eleventh Circuit rejected all of the students’ claims. The court noted that  “lawfully present” is not a standalone immigration classification, and it is not defined anywhere in the (Immigration and Nationality) Act” *(opinion here).

The ruling is consistent with an official October 2017 statement to this writer from the United States Citizenship and Immigration Services (USCIS) that “current law does not grant any legal status for the class of individuals who are current recipients of DACA. Recipients of DACA are currently unlawfully present in the U.S. with their removal deferred.”

Decision may lead to additional legal action on access to public benefits

The court’s decision likely portends more legal action. Georgia’s public benefits law, OCGA 50-36-1, requires “lawful presence” for non-citizens to access a host of public benefits, including drivers licenses, official ID Cards, health benefits, food stamps, insurance licenses and unemployment benefits. While it goes largely unreported by the Georgia media, various official agencies have been quietly issuing these benefits to DACA recipients since 2012 based on the applicant’s oath on affidavits that they are a “qualified alien.”

The monetary cost to Georgia taxpayers for benefits to the illegal aliens with deferred action on deportation, both in and outside of DACA is unknown.

Updated, 4:50PM March 8, 2019. Updated July 26, 2020 with addition of link to affidavit. Updated July 30, 2020 with link to “qualified alien.”