Homeland Security Secretary Alejandro Mayorkas said recently that, “Our asylum system is broken. We need Congress to fix it.”
The asylum system is broken, but it is broken in no small part because Mayorkas has overwhelmed it by releasing unprecedented numbers of undocumented asylum seekers into the country — and Congress can’t fix that.
In fact, Congress already has enacted a law that prohibits what Mayorkas is doing: Section 1225(b) of the Immigration and Nationality Act (INA) mandates the detention of arriving migrants who do not have proper entry documents, with a narrow exception for parole.
This has not stopped Mayorkas from releasing so many asylum seekers into the country that it is utterly impossible for the already overwhelmed immigration court to keep up with its caseload.
At the beginning of the Biden administration, the immigration court backlog was around 1.3 million cases. Two years later, it had risen to 2.1 million cases. The average asylum case will take about 4.2 years to complete. And these numbers do not include the migrants Mayorkas has let into the country who haven’t yet been put in removal proceedings.
The backlog has gotten so large that we may have to follow the United Kingdom’s lead and suspend the admission of asylum seekers who come here unlawfully.
The UK’s plan
British Prime Minister Rishi Sunak promised the British people that he would stop asylum seekers from coming to the UK illegally.
Home Secretary Suella Braverman took a step towards achieving this objective with the introduction of her Illegal Migration Bill. It would create a scheme whereby the admission of asylum-seeking migrants who arrive illegally in the UK generally would be prohibited. They would be removed to their home country or to a safe third country where they could have their asylum claims processed.
US asylum law allows the president to suspend the admission of asylum seekers: INA section 1182(f) provides the president with virtually unlimited power to suspend the admission of any migrant, or any class of migrants. The Supreme Court has held that the sole prerequisite to exercising this power is that the president must find that the entry of the covered migrants “would be detrimental to the interests of the United States.”
Hiring more immigration judges
Biden hired 104 judges in fiscal 2022, and has added 66 more judges so far in fiscal 2023, which brings the total number of immigration judges up to around 600. However, the new hires are only a fraction of the number needed just to keep up with new filings.
The immigration court completed around 200,000 cases per year between fiscal 2013 and fiscal 2018; almost 300,000 in fiscal 2019; and around 250,000 in fiscal 2020. The number fell to around 130,000 cases during fiscal 2021, the first year of the Biden administration, but it rose to around 400,000 cases in fiscal 2022. And the court has disposed of 172,180 cases in the first four months of fiscal 2023, which puts it on track to decide nearly half a million cases this fiscal year.
But the number of new cases being added to the court’s calendar has reached record highs too. DHS initiated 800,000 cases in removal proceedings in 2022; and it has initiated 329,380 cases in the first four months of fiscal 2023.
The administration would have to double the number of immigration judges it has now just to keep up with the volume of the new cases it is receiving.
And a major increase in illegal border crossings is expected in May when the Title 42 order is terminated, which could result in yet another very substantial increase in case load.
In fact, even if the immigration court doesn’t get any more cases and manages to dispose of 500,000 cases a year from now on, it would take the court more than 4 years to eliminate its current backlog.
Is there a solution?
There may not be an alternative to suspending the admission of new asylum seekers — like the UK plans to do — to give the immigration court a chance to catch up, but this doesn’t mean that we have to abandon our moral obligation to provide refuge to people who are fleeing from persecution.
That obligation can be met by increasing the annual number of refugees to accommodate expelled asylum seekers who can establish eligibility for refugee status. Moreover, the increase wouldn’t have to wait until the president’s next annual refugee conference with Congress. INA section 1157(b) gives the president authority to raise the refugee number on an emergency basis if he thinks an increase is warranted by humanitarian concerns.
We also could expand the CAM program, which screens qualified children in El Salvador, Guatemala, and Honduras to determine whether they may be eligible for refugee status with possible resettlement in the United States. There is no reason to limit that program to children, or to the three Northern Triangle countries. It should be available to anyone who has a persecution claim, in as many countries as possible.
There may be better ways to rescue our overwhelmed asylum system, but I don’t know of any.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanhillop-eds.blogspot.com