THE U.S. ASYLUM SYSTEM IN CRISIS Charting a Way Forward By Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff THE U.S. ASYLUM SYSTEM IN CRISIS Charting a Way Forward By Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff September 2018 Acknowledgments The authors thank the U.S. Citizenship and Immigration Services (USCIS) Asylum Division and the Executive Office for Immigration Review (EOIR) for generously providing data and sharing valuable insights and information about the operations of the U.S. asylum system. This report’s analysis would not have been possible without input from knowledgeable, dedicated leaders in these offices. A thank you also goes to the dozens of individuals who participated in three Migration Policy Institute (MPI) roundtable meetings convened to collect expert feedback and practitioner perspectives for this project. The authors are particularly grateful to the United Nations High Commissioner for Refugees (UNHCR) Washington, DC office leadership for lending their expertise on country conditions in the Northern Triangle of Central America, regional asylum systems, and legal issues in the U.S. asylum system. The authors also owe special thanks to Bo Cooper and Andrew Schoenholtz for contributing written analyses on especially thorny issues relevant to this study; David Martin and Eleanor Acer for reviewing early drafts of the report; Jessica Bolter for providing critical research assistance; and Lauren Shaw, whose edits helped make complex material more accessible. Finally, for their generous support for MPI and for this project, the authors are deeply grateful to the Ford Foundation, Open Society Foundations, the Carnegie Corporation of New York, Unbound Philanthropy, the 21st Century International Ladies’ Garment Workers’ Union (ILWGU) Heritage Fund, and the John D. and Catherine T. MacArthur Foundation. © 2018 Migration Policy Institute. All Rights Reserved. Cover Design and Layout: Sara Staedicke, MPI Photo courtesy of: Myfra/ Pixabay No part of this publication may be reproduced or transmitted in any form by any means, electronic or mechanical, including photocopy, or any information storage and retrieval system, without permission from the Migration Policy Institute. A full-text PDF of this document is available for free download from www.migrationpolicy.org. Information for reproducing excerpts from this publication can be found at www.migrationpolicy.org/about/copyright-policy. Inquiries can also be directed to [email protected]. Suggested citation: Meissner, Doris, Faye Hipsman, and T. Alexander Aleinikoff. 2018. The U.S. Asylum System in Crisis: Charting a Way Forward. Washington, DC: Migration Policy Institute. Table of Contents Executive Summary ................................................................................... 1 I. Introduction ......................................................................................... 4 II. The U.S. Asylum System and Its Prior Reforms .............................. 6 Core Principles of the 1990s Reforms ..............................................................................................6 III. Asylum Pathways and the Surge of Applications ............................. 7 A. Affirmative Asylum Caseload before USCIS ............................................................................9 B. Defensive Asylum Caseload before EOIR ..............................................................................14 C. Recent Caseload Management Actions ..................................................................................16 D. Other Asylum Policies Introduced by the Trump Administration ....................................17 IV. The Regional Context: Violence in Central America and Its Impact on the U.S. Asylum System ................................................ 18 A. Violence in Home States ............................................................................................................18 B. Internal Displacement .................................................................................................................20 C. Countries of Asylum in the Region ..........................................................................................20 D. Protection Concerns upon Return ..........................................................................................22 E. Regional Responses .....................................................................................................................22 V. Recommendations for Revitalizing the Asylum System ............... 23 A. Restoring Timeliness ..................................................................................................................24 B. Mobilizing Regional Cooperation to Address Regional Challenges ..................................28 VI. Conclusion ......................................................................................... 29 Works Cited ............................................................................................. 30 About the Authors ................................................................................... 35 MIGRATION POLICY INSTITUTE Executive Summary The United States has a longstanding asylum tradition. Each year, the U.S. asylum system hears the claims of and offers protection to thousands of persecuted individuals. Until recently, the system was humanitarian protection that is consistent with U.S. law and international standards. widely recognized as fair, timely, and well-managed—achieving efficiency while upholding access to to a large and growing backlog of asylum cases, with many applicants waiting years for a decision. ThisWhen system asylum is claimsnow facing are not a time decided of notable in a timely challenge. fashion, In recentit harms years, those a eligibleconfluence for protection;of factors has it alsoled the right to remain in the country or to receive the work authorization granted to applicants whose case underminesdecisions are the delayed. integrity of the asylum regime by inviting misuse, with some claims filed solely to secure When asylum claims are not decided in a timely fashion, it harms those eligible for protection; it also undermines the integrity of the asylum regime. In the face of these breakdowns, the Trump administration has taken a series of actions to restrict and narrow access to asylum in the United States. These include a decision by Attorney General Jeff Sessions, known as Matter of A-B-, that largely eliminated gang and domestic violence as reasons to grant protection. Central American asylum seekers, whose claims are frequently based on these types of violence, are the most likely to feel the effects of this decision. The Trump administration has also introduced a “zero-tolerance” approach that aims to deter unauthorized migrants from crossing the and adult asylum seekers, for illegal entry. For a time, this policy was applied to apprehended families southwestby separating border children by prosecuting from their allparents, apprehended until public individuals, outcry and including a federal first-time court injunction border crossers led the administration to switch approaches and detain families together. This and similarly severe measures are unnecessarily harsh and have already proven both costly and unworkable. There is another way forward. It is based on the principles of timeliness and fairness in providing and set of recommendations draw upon the experience of similar challenges that led to fundamental and protection,successful reforms which will, of the in turn,U.S. asylum discourage system unfounded in the mid-1990s. claims and1 deter opportunistic flows. This analysis A. A System in Crisis ACitizenship foreign national and Immigration may seek asylum Services in (USCIS),the United a component States either of throughthe U.S. Departmentan affirmative of orHomeland a defensive Security process. Individuals already present in the country may apply for asylum affirmatively with the U.S. (DHS).Department These of cases Justice are that adjudicated houses the by immigrationasylum officers courts. who Individuals either grant in the removal applicant proceedings, asylum or whose refer unsuccessfulcases are before applicants immigration to the judges, Executive may Office apply for for Immigration asylum defensively, Review as(EOIR), a defense the entity against within their theremoval. U.S. U.S. Immigration and Naturalization Service (INS) during the mid-1990s when the asylum reforms described in this report 1 Reportwere developed coauthors and Doris implemented Meissner and as one T. Alexander of the Commissioner’s Aleinikoff were, key respectively, priorities. The Commissioner insights gained and from General that Counsel experience of the were instrumental in helping to inform this report. The U.S. Asylum System in Crisis: Charting a Way Forward 1 MIGRATION POLICY INSTITUTE Asylum seekers who make a claim for protection at or near a U.S. border follow a third process because many are subject to expedited removal, a swift administrative form of deportation that does not allow for a hearing before an immigration judge.2 Those placed in expedited removal who express a fear of return 3 to determine whether the tofear their screening home country may apply have for a asylumcredible-fear defensively interview before with an animmigration asylum officer judge. person has a “significant possibility” of establishing eligibility for asylum. Those who pass this credible- Theapplications, volume