Scholar argues that mechanisms for quicker approval of strong asylum claims would alleviate pressure on the U.S. asylum system.
United States immigration courts face a growing backlog of over 3.5 million cases. More than half of these are asylum applications. This backlog puts pressure on the U.S. asylum offices to adjudicate claims quickly. Nevertheless, asylum seekers often wait for years to receive a hearing.
In a recent article, Michael Kagan, a law professor at the University of Nevada, Las Vegas, proposes systemic changes that he argues would cut through the backlog.
Kagan observes that the United States has responded to the backlog by implementing procedures to reject weak claims more quickly without corresponding procedures to approve strong claims more quickly. Immigrants facing expedited removal must first pass a “credible fear” interview where an asylum officer evaluates whether there is a “significant possibility” of asylum eligibility. Only then will a prospective asylum applicant face an immigration judge, who decides whether they can submit a full application, which may still not be granted.
Kagan argues that this system falls short for applicants and the government alike.
For asylum applicants with valid claims, it means more waiting: 4.3 years on average in immigration court. During this time, applicants can usually obtain work authorization but cannot receive other benefits or sponsor family members’ immigration. Furthermore, initially compelling claims can weaken with time as witnesses become unavailable and specific details are forgotten, Kagan explains.
For the government, Kagan observes, expediting only the rejections of weak claims has failed to stop the application backlog from growing because strong claims still demand substantial time and money to adjudicate.
Kagan considers an alternative drawn from international refugee law: adjudicating entire groups of applicants together. This approach provides efficiency, but the American form of this process, known as Temporary Protected Status, requires a discretionary grant of protection by the Secretary of Homeland Security, meaning refugees cannot reliably obtain this relief. Kagan also observes that group-based adjudication intrinsically favors refugees from countries facing large-scale humanitarian crises, while equally deserving refugees fleeing smaller-scale persecution can be overlooked.
As a better alternative, Kagan proposes allowing strong claims, like weak claims, to be resolved quickly. If a credible fear interview produces enough evidence to warrant asylum, the interviewing officer should be able to grant it immediately, rather than merely pass the case on for further adjudication.
Kagan argues that this alternative system would prevent duplicative, wasteful effort by officers, not to mention immigration judges, government attorneys, and interpreters. He emphasizes that the officers who conduct credible fear interviews are the same officers who, in other contexts, can grant asylum fully, so they should be equally capable of recognizing legitimate claims at the interview stage.
Kagan suggests that ideally, asylum officers would be able to grant asylum based just on a written application when the claim is so “obviously credible and eligible” that an interview is unnecessary. In other immigration contexts, such as adjustment-of-status cases, U.S. Citizenship and Immigration Services already waives personal interviews that it deems unnecessary.
By law, however, the U.S. Department of Homeland Security must interview an applicant before granting asylum. Still, Kagan argues that the department can streamline the process either by granting asylum, when warranted, after the credible fear interview or by narrowing the scope of later interviews for claimants who have already shown a high likelihood of eligibility.
Kagan acknowledges that an expedited-approval procedure could allow more weak claims to slip through. He concedes that, in a faster proceeding, officers might consider facts less carefully, potentially reducing accuracy. Kagan argues, however, that the current expedited-rejection procedures can also be prone to inaccuracies—ones that jeopardize the safety of immigrants that should be granted asylum. These errant rejections put deserving applicants at risk of death and harm, he contends.
Still, Kagan suggests reforms that he argues would improve efficiency without sacrificing much accuracy and fairness. As a model, he points to civil court procedures that provide mechanisms for cases to be decided without receiving a full jury trial. These are common and well-accepted.
But unlike Kagan’s proposed expedited-rejection standard, the off-ramps in civil court procedures do not require a case to be straightforward to be resolved early. Instead, courts adopt different assumptions and ask different, targeted questions at each stage. A difficult civil case could still be dismissed early by a court based on a decisive legal question, Kagan observes.
The model of civil procedure does not perfectly fit the immigration context, Kagan acknowledges. The most common off-ramp of all—settlement—cannot translate to asylum cases, since these cases can only end in a complete grant or denial. Kagan also warns that a quicker procedure means less time for a claimant to organize their case. Many asylum seekers arrive weakened, distressed, unrepresented, and unfamiliar with the English language or the American legal system, making it harder to present their case in the most compelling light. Kagan reflects that during his own career representing asylum seekers, many seemingly weak claims later strengthened as more facts emerged.
Even so, Kagan argues that typical court procedures offer an important lesson in gradually narrowing the questions on the table. Courts can rule on important legal questions before trial, preventing parties from fighting over every issue. By contrast, asylum procedures have no such narrowing. Kagan recalls practicing across from government attorneys, who often refused to reveal which issues were of central concern or provide written responses before a hearing, resulting in more extensive, time-consuming hearings.
Ultimately, Kagan does not suggest that an expedited-approval process is a complete solution to the application backlog. He argues, however, that it would alleviate pressure on the system and remove a structural incentive for officers to deny applications, since doing so is quicker than the lengthy approval process. Kagan concludes that by giving asylum officers “the power to say yes efficiently,” the government can ensure that when easy cases arrive, they can easily be resolved.
