Category: Immigration Reform legislation

“A sober assessment of asylum cases”

The following are excerpts from a TRAC “sober” analysis of asylum cases, published December 22, 2022

The latest available data reveal that the number of asylum seekers waiting for asylum hearings in the U.S. has now reached at least 1,565,966 individuals. [Up from about 200,000 at just before Trump took office and 600,000 just before Biden took office.]  Half are in Immigration Courts within the Justice Dept, half within the Customs and Immigration Service in the State Dept.

Asylum backlogs are not new. Yet in recent years, with political, economic, and environmental instability in places like Mexico, Venezuela, Haiti, Central America, Ukraine, and elsewhere, the United States has seen a growth in migrants’ needs that outpace even the growing number of Immigration Judges and asylum officers added by both Democratic and Republican administrations.

In this report, TRAC aims to contribute to the public’s understanding of the current state of the asylum system by providing a detailed portrait of the nearly 800,000 cases in the asylum backlog before the Immigration Courts.

At the end of FY 2012, over 100,000 asylum cases were pending in the Immigration Court’s backlog. A decade later, the backlog had grown over 7-fold to over 750,000 cases in September at the end of FY 2022.  During October and November 2022 (the first two months of FY 2023), the Immigration Court’s asylum case backlog grew by more than the growth during the entire last year of the Obama administration in FY 2016.

Detaining applicants

A major political debate, one which is playing out in part in the U.S. federal courts, continues to rage over whether asylum seekers should be detained while their cases are waiting to be heard. As a practical matter, Immigration and Customs Enforcement currently  [December 2022] is detaining just 29,000 immigrants. Detaining everyone in just the current Immigration Court asylum backlog would require more than 27 times current detention numbers. Today only 0.3 percent of those in the current asylum backlog are detained. See Table 3 and Figure 4.

While most immigrants in the asylum backlog are not detained, a growing segment are being electronically monitored under ICE’s Alternatives to Detention (ATD) program. As of June 30, 2022, a total of 16,569 families were being actively monitored while they were awaiting their hearing and decision. Given that only one member of a family and not all family members likely are being monitored, this implies that virtually all of the 110,000 asylum seekers assigned to the Dedicated Docket are (or were) subject to ATD monitoring.

Representation

Without representation, many asylum seekers are unable to complete the paperwork needed to file a formal asylum application. However, within the current asylum backlog, one in five (21%) are recorded as unrepresented. This ratio appears to greatly overstate the actual percentage who are unrepresented.  It is possible that a large number of asylum seekers are recorded as unrepresented in the Court’s files even when the asylum application was actually prepared and submitted with the assistance of an attorney.

There is a fairly even split between male and female asylum seekers. About 3 out of 10 are children under 18 years of age. The children who make up the Court’s asylum backlog almost all enter as part of a family group. This is because for most unaccompanied children their asylum applications are filed with the USCIS under special provisions of the law and not with the Immigration Court.

Countries of origin

Asylum seekers recorded as speaking 418 different languages from 219 different countries plus those who are stateless or from countries that no longer exist are in the current Immigration Court’s asylum backlog 59% come from just five countries. Guatemala has the largest number of asylum seekers (111,184) in the current Court’s backlog. This is followed by Honduras with 101,195 and El Salvador with 97,260. Together, these three countries from the so-called Northern Triangle comprise 39 percent of the Court’s asylum backlog. Mexico with 82,837 asylum seekers and Venezuela with 71,991 complete the list of the top five.

Beyond these five dominant players, there are an additional nine countries with at least 10,000 asylum seekers in the current backlog. Driving the increasing asylum backlog have been the increasing numbers not just from Venezuela which is in the top five, but from Cuba and Brazil who are part of this longer nationality list. See Figure 6 and Table 6 for figures on the changing composition of asylum seekers from these fourteen countries.

Historically, Immigration Courts in California and New York have had the largest asylum caseloads and decided the largest numbers of asylum claims. Over the years, these two states have experienced more asylum cases filed than any other locales. During FY 2022, for example, Immigration Courts in these two states accounted for just under half (48%) of all asylum cases decided on their merits.

Backlogs

But the location of asylum backlogs has been undergoing change as the location of new asylum filings has shifted. Florida has seen explosive growth in asylum filings. So has Massachusetts. These growth patterns have been driven in large part by shifts in the nationality groups seeking asylum in this country. Asylum seekers from Venezuela and from Cuba – two nationalities that have seen the largest rise – have tended to head to Florida. Most Brazilians have sought to start their new life in Massachusetts. And largely as a result, the asylum backlogs in these two states have experienced the largest growth.

There is no simple answer to the question of how long asylum seekers have to wait before they can have their claims heard and decided. Under Biden administration initiatives, including the Dedicated Docket and the Asylum Officer Rule initiatives, some newly arriving asylum seekers are being moved to the head of the line and their hearings expedited. Indeed, criticism is growing that cases are being heard too quickly before the asylum seeker has a chance to locate an attorney, or for the attorney to prepare adequate support for the asylum claims.

For most others who are not detained, especially those who entered the backlog queue a while ago, the wait can be very long. An estimate of the average backlog wait times from when the case was filed in the Immigration Court to when their asylum hearing will be scheduled and their claims heard is currently 1,572 days, or 4.3 years. Only 43% of individuals in the current asylum backlog have an actual individual proceeding scheduled to hear the evidence on the merits of that asylum seeker’s claims.

 

 

States involved in approving immigrants?

Republican governors and congressmen have been promoting the concept of authorizing states to run their own immigration programs. These are generally designed for temporary work visas. The concept is in part based on Canada’s success with Province-based programs which lead to permanent residence approved by the national government, I have noted several times the proactive approach of Canada to immigration, where the inflow of permanent immigrants is as a rate of three times that of the U.S.

A key element in state or provincial immigration programs is how they bypass the immigration bureaucracy of the national governments.

Eric Holcomb, Republican governor of Indiana and Spencer Cox, Republican governor of Utah,called for the legal ability of state governments to sponsor immigrants (Washington Post):

“Indiana has about 220,000 open jobs right now and Utah has 107,000, according to the most recent federal data — more than 6 percent of all jobs in both states. With strong business and tax environments, we like our chances in the competition for job-seekers moving from other states. But they won’t be enough to fill all of those vacancies. We also need immigrants who are ready to work and help build strong communities.”

Canada has a visa program run by its provinces. The Canadian Provincial Nominee Program (PNP) is an immigration program that allows Canadian provinces and territories to nominate individuals who are interested in immigrating to Canada and who possess the skills and experience needed to contribute to the economic growth of that province/territory. Under the PNP, each province or territory in Canada has its own unique set of eligibility criteria, selection process, and immigration streams that cater to specific industries and skill sets. These programs are designed to address the unique economic needs and opportunities of each region. Each province has its own set of eligibility requirements, which can include factors such as education, work experience, language proficiency, and adaptability.

Once a candidate meets the eligibility criteria, they may submit an application to the province or territory of their choice. If they are nominated by the province, they can then apply for Canadian permanent residence to the federal government.

Here is a 2017 evaluation of the Canadian program, giving it high marks,

Utah Congressman John Curtis introduced legislation in 2019 for a pilot state sponsor visa program for states to opt in and sponsor three-year visas. State would customize their visa allocations based on each state’s unique economy and needs. States could write compacts with other states to coordinate visas. States could use the visas to normalize unauthorized workers. Text of the bill here. Summary of the bill here.

The idea was promoted in The Atlantic in 2021.

Why have immigration? David Miller on immigration policy

Miller’s “Strangers in Our Midst” (2015) is the Oxford University professor’s latest work on immigration policy from the perspective of political philosophy. He says that immigration policy is more than “weighing up economic gains and losses or protecting human rights, it also raises difficult questions about the way we understand ourselves as members of political communities with long histories and rich cultures.”

I’m going to try to summarize how Miller thinks immigration policy should be designed – that is, primarily as an expression of political values. He says that for a liberal democracy, immigration policy should by guided by four values (pg. 157):

Cosmopolitanism: should we consider all the world’s people as fundamentally equal, with equal rights of movement, residence and social and political rights? Miller says in contrast with universal equality, members of a society have obligations to each other that need to be recognized and fulfilled otherwise the nation state can’t be preserved. He calls these “associative obligations.” He calls this “weak cosmopolitanism.”

National self-determination: the democratic nation state must provide immigrants substantially equal rights and protections of native-born citizens, including access to citizenship, but can limit immigration in order to preserve internal mutual trust and true self-determination. Separate and exclusive cultural identities can erode self-determination in is view.

Fairness: He seems to say that a democratic nation state must adhere unconditionally to its principles of distributive justice and reciprocity of obligations between the state and individuals, regardless of citizenship status (or even legal right to be in the country).

Social integration: Miller’s fourth value is to me an attribute of national self-determination.

He thinks of refugees as a unique class. States have a “remedial obligation” to admit them because their states do not ensure human rights (pg. 92). States have a duty of care to make sure they do not have to return to their country of origin (pg. 78).

(This post was originally made in 2016.)

A summary of Biden’s views on immigration

In his February 7 State of the Union address, Biden mentioned in passing his immigration bill.

In early 2021, Biden released a proposal for comprehensive reform, U.S. Citizenship Act of 2021, which was summarized by the NY Times” “It would allow virtually all undocumented immigrants to eventually apply for citizenship; increase legal immigration; add measures to secure ports of entry and speed processing of asylum seekers; and invest $4 billion in the economies of Central American countries to reduce migration.” Go here for a text of the bill. The White House’s summary of the bill is here.

I wrote about the bill here:  The highlight of the bill is legalization of substantially all unauthorized persons in the country as of 1/1/21. It does not appear to significantly alter the design of the country’s visa system except for normalization, through temporary legal status, of the state of unauthorized persons. It does not create a workforce assessment function; Washington will remain without a capacity to assess how present and future immigration will impact the economy. The bill requires that “DHS and the Department of Labor establish a commission involving labor, employer, and civil rights organizations to make recommendations for improving the employment verification process.”

Here is a summary of how several bills submitted in 2021 would affect the legal states of unauthorized persons.  Here is a summary of Biden’s actions on immigration, including a goal to increase the number of Green Cards above the pre-Trump prevailing level of one million.

 

Status of immigration bills as of December 8 2022

Now that we are closing in on Democratic control of the House, I want to review the pressing  legislative initiatives for immigration.  There is no assurance that any of these initiatives will meet the 60 vote threshold in the Senate.

The Eagle Act (HR 3648), originally introduced in 2021, will remove the country caps for H-1B visa. The main beneficiary of the act will be Indians. (Text here.)

Farm Labor, through the Farm Workforce Modernization Act of 2021 (HR 1603), passed by the House at that time. (Go here for the text). The farm industry has long tried to legalize its unauthorized workers. (Go here for my posting in May 2022). (Go here for the text,) Here is an argument for the act.

The Dream Act of 2021,( S. 264), which is the latest iteration of legislative efforts since Obama’s executive order of June 2012 which created legal protection for children brought illegally into the country but has antecedents going back to 2001. (Here is a recent argument for passage now.)

A Senators Tillis and Sinema bill, being rushed into introdution as of now, would lealize Dreamers, authorize Title 42, and add border security. The Wall Street Journal has endorsed it

The Eagle Act

The Eagle Act would do more: address a backlog in conversation of H1-B visas to Green cards, but will do that not by increasing the total number of Green Cards but claiming a share of them; and removing the aging out risk for children here due to dependency on parent visas, who reach 21 years of age. (Here and here.)

The text of the Eagle Act has as of today the original 2011 language unchanged: HR 3648, Equal Access to Green Cards for Legal Employment (EAGLE) Act of 2022.

The White House endorsed the Eagle Act on December 6.

Criticisms

I cite two.  On is an opinion article on The Hill on November 11 chastises the Democrats for failing to fashion a bill which would be more palatable to Republicans. The author harks back to the most recent comprehensive reform bill, in 1986, which failed in stemming illegal migration, though the initiatives do not address general amnesty.

Second, the American Hospital Association criticizes the bill because it is almost exclusively focused on temporary tech workers and does nothing about the nursing shortage. The AHA writes: “Most foreign-trained nurses are not qualified to come into the U.S. on an H-1B visa. They instead must apply for legal permanent resident status, or a green card, to be granted employment-based immigration for themselves and their family members. We continue to support the green card process as the most effective way to offer permanent employment for nurses.”

Afghan admission to the US, as of late 2022

The immediatepost war admission to the U.S. of persons from one of our post WW 2 wars was about 100,000 (go here). We are close to that figure now…subsequent admissions will be in the 100s of 1000s.

From the New York Times: The [U.S] government has helped resettle more than 88,000 Afghans in the United States, according to the Homeland Security Department, many of them with temporary humanitarian parole status. And since the beginning of the Biden administration through Nov. 1, the government issued nearly 19,000 Special Immigrant Visas, which are reserved for Afghans who were employed by or on behalf of the U.S. government in Afghanistan.

But approximately 63,000 applications for such visas are still being processed, the State Department official said. And because each applicant has, on average, more than four eligible family members who would also receive the visa, according to the State Department, the fate of more than 315,000 Afghans hangs on the adjudication of those applications.

A key voluntary organization is Evacuate Our Allies.

The Afghan Adjustment Act would:

Provide a pathway to permanent legal status for Afghan parolees and Afghans who were lawfully present in the United States prior to the Taliban takeover of Afghanistan.  Establish an Interagency Task Force responsible for creating and implementing a strategy to continue the relocation and resettlement of eligible Afghan partners from Afghanistan over the next ten years, and providing much-needed intra-governmental coordination.  Require the U.S. Department of State to respond to congressional inquiries related to SIV applications or U.S. Refugee Admissions Program (USRAP) referrals. Expand SIV eligibility for Afghans who worked and served alongside U.S. forces, including members of the Afghan National Army Special Operations Command, the Afghan Air Force, the Female Tactical Teams of Afghanistan, and the Special Mission Wing of Afghanistan, as well as certain Afghan family members of U.S. service people and veterans.

SIV – Special Immigrant Visa – for Afghans and Iraqis is described here and here.

Asylum officers and the backlog: a time line

Pre-Biden: Immigration courts encounter immense backlogs, in part due to failure of Obama and Trump administrations to obtain from Congress funding for additional judges. Ge here.

August 2021: The Biden administration says it wants to assign to asylum officers authority to interview and decide on asylum cases, rather than depend entirely on immigration courts.  It aims to hire an additional 1,000 asylum officers and another 1,000 support staff, a senior DHS official told Reuters ahead of the announcement. The hiring spree would more than double the current crop of about 800 asylum officers and could be funded either by Congress or immigration application fee increases. (Reuters),

December 2021: Asylum court case backlog reaches 54 months

March 24, 2022:  DHS issues rule.

Per the NY Times, Under the new policy, which the administration released on Thursday as an interim final rule, some migrants seeking asylum will have their claims heard and evaluated by asylum officers instead of immigration judges. The goal, administration officials said, is for the entire process to take six months, compared with a current average of about five years. The plan is to release many asylum seekers through a parole status while they go through the process, which critics say will draw even more hopeful migrants to the border. (Go here.)

April 2022: Texas AG Paxton sues to prohibit the use of asylum officers for credible threat interviews.

June 2022: DHS begins to refer approximately a few hundred noncitizens each month to USCIS for an Asylum Merits Interview (AMI) following a positive credible fear determination. (Go here.)

Want to become an asylum officer? Go here.

 

Visa appointment wait times  

How long the wait to get an interview. As of June 2022

India: tourist 291 days, student 43 days

Kenya: tourist, 664 days, student 405 days

Indonesia: tourist 50 days, student 4 days

Saudi Arabia: tourist 133 days, student 43 days

South Africa: tourist 238, student 29

Thailand: tourist 180, student 21

Uruguay: tourist 604, student 165

Venezuela: office closed

From here.

Humanitarian parole for Ukraine refugees

Per the Niskanen Center, the Biden administration implemented today (4/21/22) United For Ukraine, an innovative approach to rapid refugee intake – authorizing households to directly accept Ukrainian refugees, bypassing the conventional channel of central intake and then assignment to one of the many resettlement organizations in the United States. In effect it is a private sponsor-based program, though it might not be formally stated as such.

This is a potentially explosive change in refugee acceptance. Enormous pressure will be put on Washington to expand a privatized refugee system to many comers. For instance, there are today in the United States about 5,000 Banyamulenges from the Democratic Republic of Congo. These people are under threat of genocide. We can expect that many of these people here will privately sponsor their relatives and others for refugee status.

This scenario can apply to any population experiencing refugee characteristics and linked to a population in the United States ready to sponsor. A refugee is one who has suffered “persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group or political opinion.”

Go here for an overview of the sources of refugees.

Per the Center, Humanitarian parole is part of the U.S. policy toolkit long used to address emergency situations. Parole gives the administration the authority to admit any individual for a temporary period — up to 2 years — if their admission provides significant public benefit or satisfies an urgent humanitarian need. Beneficiaries of the Ukraine program will be welcomed by a supporter who will help facilitate their transition in the U.S. By tapping fiscal sponsorship as a formal pathway for displaced Ukrainians, the U.S. can welcome refugees into the U.S. in a quick and orderly manner while linking them with Americans who want to help them settle and support them financially.

Parole lasts for a maximum of two years. After it expires, individuals who want to remain in the U.S. must apply for asylum (which may be tricky in its own right), but the current asylum backlog stands at more than 1.6 million cases, meaning these Ukrainians could remain on temporary status for many years while they wait for a decision from the backlogged immigration courts. A more expeditious approach is for Congress to pass legislation that offers permanent status to Ukrainians — similar to the Afghan Adjustment Act now pending in Congress.