Reimagining Affirmative Asylum

Posted: 7 Mar 2024

Date Written: February 20, 2024

Abstract

In 2022, the Biden administration finalized regulations that overhauled procedures for asylum claims for the first time since 1996 by transferring the duty to decide certain asylum claims from the Immigration Court to the Asylum Office. While advocates critiqued the proposal for its extreme procedural deficiencies, they supported its basic premise: That expanding the jurisdiction of the Asylum Office was a positive development for asylum seekers. This Article argues that the Asylum Office has failed policymakers’ original vision for our asylum system, asylum seekers, and its own Asylum Officers (AOs), and that supporting any expansion of the office in its current form is unwise. Policy makers in the 1990s settled upon the current asylum adjudication system for cost-saving and efficiency reasons. They believed that the Asylum Office would quickly grant meritorious asylum cases and refer frivolous or complicated cases to immigration court for further adjudication. They imagined affirmative grant rates would climb as quick adjudications by AOs and other features of the new system would discourage the filing of frivolous applications. Speedy grants at the Asylum Office would save money by reserving immigration judge (IJ) time for difficult cases. Creating a professional corps of AOs would also increase the quality and consistency of decision-making in the asylum system.

This Article argues that each of these important assumptions of policymakers have not panned out. The Asylum Office fails to grant far too many meritorious cases. In recent years IJs granted asylum to 76-83% of asylum seekers referred to removal proceedings by AOs. Grant rates across offices continue to deviate significantly, and startling differences between office grant rates are growing. AOs face extraordinary pressure to adjudicate cases quickly. As a result, AOs are often very confrontational during interviews of asylum seekers, even though regulations require them to be “non-adversarial.” Former AOs further admitted to the author that they were more likely to refer an asylum seeker to removal proceedings simply because referring is faster than granting and they are evaluated on the speed at which they adjudicate cases. Given these failures, advocates should reimagine our affirmative asylum system. This Article begins that reimagination.

Keywords: Asylum, immigration, affirmative asylum, asylum officers

Suggested Citation

Sayed, Faiza, Reimagining Affirmative Asylum (February 20, 2024). California Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4747421

Faiza Sayed (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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