Biden Admin. Admits Its ‘Asylum Officer Rule’ Will Further Impoverish Struggling U.S. Workers

If you want to know how little the Biden administration cares about struggling American workers, please read the paragraph below, which was published in the Federal Register on March 29, 2022. That paragraph is buried 127-pages deep in a document that the federal government estimates contains 155,000 words, and that it admits would take the “average reader” about “10.3 hours” to digest.

The 1996 Amendments and “Expedited Removal”. Before I get to the paragraph in question, some background is necessary.

The document in question is formally captioned “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers”, but it is informally known as the “Asylum Officer Rule”.

The Asylum Officer Rule overturns more than 25 years of practice and procedure by allowing U.S. Citizenship and Immigration Services (USCIS) asylum officers (AOs) to adjudicate the asylum claims of both illegal migrants apprehended by Border Patrol agents and inadmissible aliens encountered by Customs and Border Protection (CBP) officers at the ports of entry who lack proper documents to be admitted to the United States.

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress amended section 235(b)(1) of the Immigration and Nationality Act (INA) to create what is known as “expedited removal”. The express purpose of that amendment was to speed the deportation of those aliens and to curb abuse of our generous asylum system by aliens who were simply coming to work.

Congress’s expedited removal scheme in section 235(b)(1) of the INA allows CBP to quickly deport illegal aliens encountered at the borders and the ports without obtaining a removal order from an immigration judge (IJ) following removal proceedings conducted under section 240 of the INA, which is the rule for most other removable aliens.

Expedited removal, however, comes with a “catch”. That catch requires CBP officers and Border Patrol agents to refer aliens subject to expedited removal who express a fear of harm if returned or who ask for asylum to AOs at USCIS, for what is known as a “credible fear” interview.

The “credible fear” standard is low, defined by statute as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208” of the INA.

At the end of that informal interview, the AO issues a determination on the alien’s credible fear claim. Prior to the issuance of the Asylum Officer Rule, if the AO issued a “positive credible fear determination”, the alien would be referred to an IJ to apply for asylum in a section 240 removal proceeding, and if the AO made a “negative credible fear determination”, the alien could either ask for an IJ to review that decision or be removed.

Because the credible fear standard is so low, AO’s made credible fear determinations in 81 percent of cases they considered between FY 2008 and FY 2019, and IJs found credible fear with respect to 2 percent more of those aliens — 83 percent in total, according to DOJ statistics.

Removal hearings under section 240 of the INA are “adversarial proceedings”, during which an ICE attorney appears on behalf of the United States to cross-examine the alien and to offer country-conditions and impeachment evidence. ICE attorneys who disagree with an IJ asylum grant can appeal that decision to the Board of Immigration Appeals (BIA).

Congress in IIRIRA also amended section 240 of the INA to require IJs to order aliens who failed to appear at removal hearings removed in absentia.

Consequently, fewer than 17 percent of the aliens subject to expedited removal during that time period who received positive credible fear determinations from AOs and IJs were granted asylum. By contrast, more than 32.5 percent of those aliens were ordered removed in absentia when they failed to appear in court.

“An Applicant for Asylum Is Not Entitled to Employment Authorization”. As I noted at the outset, Congress was expressly concerned in IIRIRA that aliens were abusing the asylum system simply to work in the United States.

That was part of a general concern that Congress had about the effects of large-scale immigration to the United States on the wages and working conditions of American workers — both U.S. citizens and lawfully admitted immigrants. As it explained in a conference report for the bill that would later become IIRIRA:

Large increases in immigration create problems as well as opportunities for the American society and economy. The Commission on Immigration Reform noted that “immigrants often are a bright spot in today’s all too often bleak urban environment,” and that in areas where they concentrate, immigrants “frequently establish new businesses and other employment-generating activities that promote the renewal of city neighborhoods and commercial districts.” On the other hand, immigration has costs as well, many related to the fact that such a preponderance of immigrants (close to 9 million since 1980) are admitted without reference to their level of education or skills. The current cohort of immigrants is far more likely to have less than a high-school education than native-born Americans. This can have the effect of flooding the labor market for unskilled work, as well as creating pockets of impoverished immigrants who will be less likely to assimilate into the broader American society. [Emphasis added; footnotes omitted.]

To address such concerns, Congress in IIRIRA also amended the asylum statute at section 208 of the INA to add the following restriction on work authorization for aliens seeking such protection:

An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.

That provision is known as the “180-day rule”.

“The Asylum Officer Rule”. Which brings me to the Asylum Officer Rule, which the administration published in September 2022. As noted, prior to its publication, only IJs could grant asylum, and then only at the end of a removal hearing.

The Asylum Officer Rule, however, allows the AO who made the positive credible fear determination to then grant the alien asylum, following a “nonadversarial” interview (the “Asylum Merits Interview”, or “AMI”) at which the alien is permitted to have an attorney but at which no ICE attorney will be present. There is also no appeal — and no guarantee of review — of an AO asylum grant.

To speed the process under which the alien receives work authorization under the 180-day rule, the Asylum Officer Rule eliminates the current requirement that aliens seeking asylum file a formal “Application for Asylum and Withholding of Removal” (Form 1-589).

Instead, the AO’s “written record of the positive credible fear determination shall be considered a complete asylum application for purposes of … requests for employment authorization”. In other words, the rule is deliberately written to undermine Congress’ work restrictions on asylum applicants in the 180-day rule.

And, to speed the process under which AOs grant asylum, the Asylum Officer Rule mandates that AOs must conduct the AMI within 45 days of service of the positive credible fear determination. Currently, it takes IJs on average about four years to adjudicate asylum applications in non-detained removal proceedings.

An asylum grant comes with an automatic grant of employment authorization, and that tight AMI deadline — in combination with the directive in the Asylum Officer Rule that service of the AO credible fear determination will start the clock on the 180-day employment period — will flood the labor market with illegal migrants, most of whom will have only entry-level work skills.

Finally, unlike the IIRIRA amendment to section 240 of the INA that requires IJs to order aliens who fail to appear deported in absentia, the only penalty that an alien who fails to appear for the AMI will face is the possibility — not even the probability — that the alien will be placed into removal proceedings before an IJ.

Remember — the 180-day clock for employment authorization starts as soon as those aliens receive the written credible fear determination from the AO, so if they have weak or fraudulent claims (as most do), it’s in their best interest not to show up, because it will just give them more time to live and work here.

The One Paragraph. The Asylum Officer Rule notes that these changes could have a significant impact on the wages of low-skilled workers in the United States, but you have to dig 127 pages into that document to find that admission, in the one paragraph I referenced at the outset:

The impact on labor earnings developed above has the potential to include both distributional effects (which are transfers) and indirect benefits to employers. The distributional impacts would be felt by asylum applicants who enter the U.S. labor force earlier than under current regulations in the form of increased compensation (wages and benefits). A portion of this compensation gain might be transferred to asylum applicants from others who are currently in the U.S. labor force or eligible to work lawfully. Alternatively, employers that need workers in the U.S. labor market may benefit from those asylum applicants who receive their employment authorizations earlier as a result of the [rule], gaining productivity and potential profits that the asylum applicants’ earlier starts would provide. Companies may also benefit by not incurring opportunity costs associated with the next-best alternative to the immediate labor the asylum applicant would provide, such as having to pay existing workers to work overtime hours. To the extent that overtime pay could be reduced, some portion of this pay could be transferred from the workers to the companies. [Emphasis added.]

In other words, the same illegal migrants whom Congress was concerned about — the ones who are coming here to exploit the U.S. asylum system by working — will plainly be placed on a fast-track to employment under the Asylum Officer Rule, and that will reduce the wages of “the next-best alternative to the immediate labor the asylum applicant would provide”, i.e., struggling American workers.

But, hey, look on the bright side — big businesses will benefit, because they won’t have to deal with that pesky “next-best alternative” American labor, and they’re going to save some serious overtime money, to boot.

Here are the real-world consequences of all that bureaucratese: The minimum wage in my current home state of North Carolina is $7.25 per hour, or $14,500 per annum, eight hours per day with 50 work weeks per year. That’s just a little more than I earned in my first clerical job out of college in 1988, when I was paid a salary of $13,500 per annum.

Adjusted for inflation, my 1988 salary works out to $34,721 in today, and I can assure you that I struggled to get by on that, in a roach-infested apartment with a roommate and a lot of cheese sandwiches. That $14,500 annual hourly minimum wage in 2023 would work out to just $5,249 in 1988 dollars, meaning the local blood bank would have seen a lot of me (and my left arm).

If that 2023 minimum-wage worker could work just 20 extra hours per week for a 50-week year at time-and-a-half ($14.50 per hour), it would add an additional $14,500 per annum to his or her bank account, meaning the worker would bring home $29,000 per annum. For many, that’s the difference between “struggling” and “homeless”.

The Center made these points and others in its response to this plan when it was proposed, so the Biden administration knows its Asylum Officer Rule — which places illegal migrants on a fast-track to work authorization — will make the plight of already struggling American workers all the worse. As this one paragraph demonstrates, however — it simply doesn’t care.