The Biden Administration Begins Shifting Asylum Determinations to Federal Officers

The Homeland Security Department this week began shifting responsibilities of adjudicating some asylum cases from a court system to federal officers, promising to staff and train thousands of new employees to expedite the process and reduce longstanding backlogs. 

DHS said it is phasing in implementation of the policy, which it first announced last year, seeking to refer only a few hundred asylum applicants to the new process as U.S. Citizenship and Immigration Services “builds operational capacity over time." The initiative will be piloted at two detention facilities in Texas and be limited to asylum seekers who indicate they plan to live in Boston, Los Angeles, Miami, New York, Newark and San Francisco.  

USCIS is in the midst of a major hiring surge as it prepares to implement the program. It has predicted it will need a minimum of 800 new officers to fully transition to the system, which would require $180 million and allow for the processing of 75,000 cases annually. The agency said it could need up to 4,600 new employees, but the most likely scenario would require slightly more than 2,000 new hires. 

Under current policy, USCIS officers conduct only preliminary “credible fear” screenings to determine whether immigrants’ removals should be put on hold. Those who receive a favorable determination are then referred to the Justice Department’s Executive Office of Immigration Review to have their case heard before an immigration judge. Under the new system, those immigrants would still have another hearing but would only have to deal with asylum officers. Those whose credible fear cases are rejected by USCIS would still then receive an expedited hearing before an immigration judge, unless they declined that opportunity.

Immigrants would only be eligible for the new system if they are placed into expedited removal after they are first encountered by DHS personnel. They will then receive the normal interview to determine the credibility of their fear of returning to their home country and those with a positive initial assessment would then go to the asylum officer within 45 days. If the asylum officers ruled in the individual or family’s favor, they would then be eligible for all the benefits granted to all other asylees. 

Immigration courts in the six designated cities will have special dockets to process those whose claims are rejected by the asylum officers. If an immigration judge agrees with the officer and determines the applicant is not eligible for asylum, DHS said, the judge would then issue a removal order and "the individual will be expeditiously removed from the United States."

Republican lawmakers have criticized the policy and unsuccessfully sought to block its implementation through legislation. Texas Attorney General Ken Paxton has filed a lawsuit against the rule and is seeking an immediate injunction to block it, saying it would lead to bureaucrats "rubber-stamping patently false claims." The Biden administration said asylum results vary significantly from one immigration judge to the next and the new process would not just be quicker, but add more consistency. 

“The aim is to build a more functional and sensible system to process claims for asylum or other humanitarian protection in a timely and efficient manner without compromising fairness,” said Victoria Palmer, a USCIS spokesperson. 

Michael Knowles, an asylum officer and president of the American Federation of Government Employees local that represents USCIS employees in the Washington area, rejected this his colleagues are "rubber-stamps," saying they apply rigorous standards when vetting applicants. He added the officers are well-qualified for the new responsibilities and implored management to listen to feedback from the frontlines "so the system is perfect." 

In an earlier rule finalizing the new policy, the Biden administration promised that the asylum officers involved in the initiative would receive “well-rounded training” enabling them to conduct “non-adversarial interviews in a fair and sensitive manner.” The employees are serving as GS-13s, while the supervisors who review their decisions are GS-14s. Bringing on 2,000 asylum officers would cost $438 million and dramatically shake up USCIS’ workforce—which has just 800 asylum officers, who are hired as GS-9s—while allowing it to handle 150,000 asylum cases at the border.

A USCIS official said officers so far assigned to the new system have vast experience and training on asylum law and precedents, but have completed new training specific to the rule and its implementation. 

“This training will make use of a variety of instructional techniques, including live lectures and the completion of practical exercises derived from real fact patterns,” the official said. “Supervisors assigned to this caseload will also attend a supervisory-focused training component.”

In addition to calling for thousands of new positions over the next two years, President Biden in his recent budget proposal called for a six-fold increase for the agency compared to fiscal 2021. USCIS Director Ur Jaddou recently told Congress her agency is still digging out from the vacancies that piled up during a year-long hiring freeze under the Trump administration, but said she was optimistic funding from the fiscal 2022 omnibus and a new hiring plan would allow the agency to onboard 3,500 total employees by the end of September. Even fulfilling that ambitious goal would only fill 95% of current slots and not account for the added growth the agency anticipates.

Jaddou added it “rocked everybody’s morale” when the Trump administration sent furlough notices to most of the USCIS workforce during the COVID-19 pandemic due to a financial crisis and noted she is still seeing the “reverberating effects” of that threat.

The USCIS official said the agency's phased implementation of the new rule will allow it to measure its staffing needs and grow its workforce accordingly. The new case volumes, as well as existing workloads, will determine the appropriate workforce levels to ensure it can "handle the full volume of work contemplated under the rule."  

Case backlogs at the agency remain at record highs, with 8.5 million total pending cases and 5.3 million that have been languishing for longer than the slotted period of time. USCIS currently has a backlog of around 400,000 asylum cases, a number that has doubled since 2016. Immigration courts, meanwhile, have a backlog of nearly 1.8 million cases.

DHS stressed its new plan was designed to address those issues.  

“By establishing a process for the efficient and thorough review of asylum claims, the new rule will help reduce existing immigration court backlogs and will shorten the process to several months,” the department said.