Biden’s New ‘Asylum Officer Rule’ Nearly Triples Border Protection Grants

Ever since the Biden administration first leaked its plans to amend longstanding federal regulations to give asylum officers (AOs) at USCIS power to adjudicate asylum claims filed by illegal migrants in “non-adversarial” interviews — instead of DOJ immigration judges (IJs) hearing those claims in formal (and adversarial) removal hearings, which has been the rule for decades — I warned the scheme would jack-up asylum-grant rates. This so-called “Asylum Officer Rule” has been in effect for nearly 18 months, and that’s exactly what’s happened — AO grant rates are nearly triple the IJ average. Or, almost double, and the reason for the imprecision in the calculation is as problematic as the rule itself.

“Expedited Removal” and “Credible Fear”. Before I delve into the statistics, some background explanation is in order.

First, the term “Asylum Officer Rule” is shorthand for regulatory changes contained in a document captioned “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers”, which was published in the Federal Register on March 29, 2022.

It overturned more than 20 years of practice and procedure by allowing AOs to adjudicate asylum claims made by aliens subject to “expedited removal” — that is, aliens apprehended by Border Patrol agents after entering illegally or deemed inadmissible by CBP officers at the ports of entry because they lack proper documents to be admitted to the United States.

Expedited removal was created by Congress in 1996 to allow Border Patrol agents and port officers to deport aliens with no right to enter without those agents and officers first having to obtain removal orders from IJs at the end of removal proceedings, which is the rule for most other removable aliens. The express purpose of expedited removal was to speed the deportation of those aliens and curb abuse of our generous asylum system by aliens simply coming to work.

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 to AOs at USCIS, for what is known as a “credible fear” interview.

At the end of that informal interview, the AO issues a determination on the credibility of the alien’s claim of fear of return. 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 removal proceedings, while if the AO made a “negative credible fear determination”, the alien could either ask for an IJ to review that decision or be removed.

DOJ statistics reveal that AOs issued credible fear determinations in 81 percent of cases they considered between FY 2008 and the fourth quarter of FY 2019, and IJs found credible fear with respect to 2 percent more of those aliens — 83 percent in total. Despite that high rate of positive credible fear findings, less than 17 percent of those border and port aliens who received positive credible fear determinations were ultimately granted asylum.

Part of the reason for that discrepancy is that the credible fear standard is low, defined in 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”.

Another factor, however, is the manner in which USCIS has implemented the credible fear process. December 2008 guidance issued by the chief of the USCIS Asylum Division directed AOs to forward all negative credible fear determinations to the agency’s Training, Research, and Quality (TRAQ) Branch for quality assurance (QA) review before they were served on the alien, while only specified positive credible fear determinations required QA review by TRAQ before service.

That guidance was issued following a February 2005 determination by the U.S. Commission on International Religious Freedom (USCIRF) that certain “procedural issues” may have been boosting the number of positive credible fear determinations.

Among those issues was a 100 percent review rate for negative credible fear determinations (20 percent of which were changed following headquarters review), whereas USCIRF found that “positive credible fear determinations ha[d] been subject to little or no review”. Another issue involved “streamlined” procedures under which “only negative credible fear determinations were” subjected to what USCIRF referred to as “extensive documentation requirements” on the part of the AO.

It’s been my experience that if you make it more onerous for a government employee to issue one decision than the exact opposite one, you will receive a lot more the latter than the former. But you don’t have to rely on my experience.

That’s because as the commission itself concluded: “The credible fear process would be much more effective by subjecting negative and positive determinations to similar quality assurance procedures to ensure against bias built into the credible fear decision-making process.” (Emphasis added.)

As the December 2008 USCIS guidance reveals, however, the credible-fear QA review process applied a different review process to positive and negative credible fear determinations, even following agency review of the USCIRF findings, at least in part.

Adversarial Removal Proceedings Before IJs. As noted, prior to the issuance of the Asylum Officer Rule, all asylum claims involving border and port aliens who had passed credible fear were considered in removal proceedings before IJs.

Removal hearings are so-called “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. By regulation, both alien respondents and ICE can appeal a final IJ asylum decision to the Board of Immigration Appeals (BIA).

In the same 1996 law that created expedited removal, Congress also amended the statute governing removal proceedings to require IJs to order aliens who failed to appear at removal hearings after proper notice removed in absentia. Notably, more than 32.5 percent of aliens encountered at the border and the ports between FY 2008 and the fourth quarter of FY 2019 who received positive credible fear determinations were ordered removed in absentia when they subsequently failed to appear in court.

The Asylum Officer Rule. The Asylum Officer Rule continues to allow USCIS to refer border and port aliens to IJs for consideration of those aliens’ asylum claims in removal proceedings, but in a change, it also allows the AOs who considered those aliens’ credible-fear claims to keep their cases, and adjudicate their asylum claims themselves.

AO adjudications of asylum applications submitted by border and port aliens under the Asylum Officer Rule differ from those IJ determinations in removal proceedings in any number of ways, but four are significant.

First, AOs issue those decisions following “Asylum Merits Interviews” (AMIs), which under the rule are strictly “non-adversarial”. That means that while the alien may have an attorney, no lawyer will be present representing the interests of the United States. If the AO denies the alien’s asylum grant, the case is referred to the IJ for a truncated review on a short timeline (that will likely never be met).

Second, the rule dispenses with the usual requirement in both “affirmative asylum” adjudications (for aliens who are not subject to removal) and “defensive” applications (in removal proceedings before IJs) that the alien actually file a formal asylum application, Form I-589.

The rule, instead “provides that the record of the positive credible determination shall be treated as satisfying the application filing requirements”. If the case is subsequently referred to an IJ, the IJ must treat the record as compiled by the AO as the “asylum application”, without the benefit of an I-589.

Dispensing with the formal application filing rule is a feature, not a bug, of the rule, intended in part to ensure that border and port aliens can receive employment authorization as quickly as possible.

In the same 1996 law that created expedited removal, Congress amended the asylum statute to allow DHS to grant work permits to aliens with pending asylum applications (with the caveat that asylum applicants are “not entitled to employment authorization”), but not until at least 180 days after the application is filed. By treating the credible fear determination as the asylum application, the rule starts that 180-day “clock” as quickly as possible.

Third, there is no process in the rule whatsoever for formal review of a grant of asylum by an AO following an AMI that is akin to the BIA appeals regulation that governs IJ asylum grants in removal proceedings.

The rule itself does state:

100 percent of USCIS asylum officers’ approvals, denials, referrals, or dismissals of an asylum application are currently subject to supervisory review before a final decision is made and served on the applicant. See Memorandum from Andrew Davidson, Chief, Asylum Div., USCIS, Modifications to Supervisory Review of Affirmative Asylum Cases (Mar. 31, 2021). The decision of the asylum officer on whether or not to grant asylum undergoes review by a supervisor, and may be further reviewed as USCIS deems appropriate, before finalization and service on the applicant. … The Asylum Division also as a matter of policy determines which cases should receive further review at the headquarters level before being finalized. See, e.g., USCIS Asylum Division, Affirmative Asylum Procedures Manual, III.Q. Quality Assurance Review (May 2016).

The problem with that explanation is that the first document referenced, the Davidson memo, doesn’t appear to be publicly available (a Google search returned only the Asylum Officer Rule itself and reference to the rule in pending litigation in federal court in Texas, and no “url” is included), while the second, USCIS’s Asylum Procedures Manual, goes into little detail about that review process.

Section II.O of that manual, captioned “SAO [Supervisory Asylum Officer] Reviews File”, provides a checklist of factors that an SAO must review before an affirmative asylum decision is issued. Among those factors is that the AO’s asylum assessment be “clear, concise, complete, and correct”.

That factor, however, is not given any more weight than a requirement that each alien’s file be “in neat, record order, with no loose papers or unconsolidated folders attached”. I’m all about keeping things tidy, but respectfully, special emphasis should be placed on the accuracy of a decision that places an alien on a path to citizenship.

Moreover, that section of the manual states at the end: “It is not the role of the SAO to ensure that the AO decided the case as he or she would have decided it. AOs must be given substantial deference once it has been established that the analysis is legally sufficient”. Not the “right decision” — just “legally sufficient”.

Again, given the implications of an asylum grant (which not only provides permanent status in this country but also work authorization, access to means-tested public benefits, and the ability to immigrate family members to the United States), an appropriate level of review should be mandatory, which USCIS’s internal procedures do not provide.

Fourth, unlike the statute governing removal proceedings, which requires IJs to order aliens who have failed to appear removed in absentia, under the Asylum Officer rule, AOs “will not issue removal orders if an applicant … fails to appear for the hearing [sic]. Instead, failure to appear for hearings [sic] will result in applicants not having their asylum claims considered through the” AMI process.

The only penalty in the rule for an alien’s failure to appear for an AMI is that the alien may be placed into removal proceedings before an IJ to apply for asylum — the very process that the Asylum Officer Rule was intended to supplement, if not replace. But, because service of the credible fear decision starts the clock on employment authorization, the alien’s eligibility for a work permit would not be impeded by a failure to appear.

AO Grant Rates Following AMIs vs. IJ Asylum Grant Rates. Which brings me to the rate at which AOs are granting asylum to border and port aliens under the Asylum Officer Rule. That data is published by DHS’s Office of Homeland Security Statistics in its “Asylum Processing Rule Cohort Reports”, which were updated on November 13.

They reveal that AOs granted asylum to 404 aliens following AMIs, while 753 other aliens were referred to IJs in cases in which the AO did not approve the alien’s asylum application — a grant rate of 34.9 percent for 1,157 cases.

By comparison, DOJ statistics reveal that, in the first three quarters of FY 2023, IJs granted asylum to 12.54 percent of aliens in cases referred to the immigration courts “originating with a credible fear claim”. That is the same class of aliens eligible for AMIs under the Asylum Officer Rule.

Do the math and you will see that AOs in AMIs grant asylum at about 2.78 times the rate that IJs do with respect to the same class of aliens in removal proceedings — strongly suggesting (if not proving) that my prediction that creating such an AO asylum adjudication process for border and port aliens would result in more asylum grants was correct.

“Admin Closed”. The statistics don’t end there, however. That’s because the Cohort Report also states that cases involving an additional 586 aliens in AMIs were “Admin Closed”, likely shorthand for “administratively closed”. The report explains: “AMI admin close reasons include interview no-show, ineligible Asylum Processing Rule/AMI processing, outside of Jurisdiction, and other reasons.”

Again, there are any number of problems with that explanation, starting with the fact that while IJs in removal proceedings have authority to administratively close cases, there is no mechanism in the Asylum Officer Rule — none whatsoever — allowing USCIS or the AOs to do so in a pending AMI case. AOs have only two choices at the end of an AMI: grant asylum or refer the alien to an IJ.

The entire rationale behind the rule — to the degree that there is one — is to expedite asylum adjudications for border and port aliens. Administrative closure frustrates that intent, particularly when it is being used in more than a third of all cases (586 closures in 1,743 cases — 1,157 AMI grants and denials plus 586 closures).

The good news for the AOs, USCIS, and the rule is that adding those administratively closed cases to the total (again 1,743 cases) drives the total AO grant rate down to 23.17 percent, or about 1.84 times the IJ grant rate in border and port cases.

The bad news is that this is still a significantly higher rate, and that those administratively closed cases suggest that the Biden administration isn’t even following its own (applicant-friendly) rules.

The Biden administration claims its Asylum Officer Rule creates a process for adjudicating asylum applications filed by illegal migrants that’s as good as, but quicker, than the pre-existing removal hearing system. But the only benefits of that rule — higher grant rates and quicker work permits — accrue solely to the aliens themselves, which will simply encourage more of them to enter illegally.