Through March of 2023, there were more than of 1.6 million pending asylum applications in the United States — a backlog larger than the total population of Maine, and made worse by the Biden administration’s border release policies, according to a report from the Center for Immigration Studies.
That massive backlog bears heavily on the legal statuses of the thousands of migrants in Maine who have applied for asylum status since arriving in the United States.
These asylum applications fall into two different categories: “defensive,” of which there were nearly 800,000 awaiting adjudication before just 649 Immigration Judges, and “affirmative,” which make up the remaining 842,000 asylum applications in backlog awaiting decisions by just 832 asylum officers, as of December 2022.
A claim for asylum is referred to as “defensive” when an individual only makes the claim after an encounter with law enforcement or immigration officials.
According to data from the Department of Justice’s Executive Office for Immigration Review, the ratio of total defensive asylum applications received to applications that were granted was 12.17 to one.
“When I left the bench in January 2015, there were just fewer than 210,000 pending asylum claims, which seemed like a lot, given that I was one of 250-plus immigration judges. The immigration courts had several advantages then that they lack now, however,” Andrew Arthur, a former Pennsylvania Immigration Judge, wrote for the Center for Immigration Studies.
“The first was that my fellow immigration judges and I did a pretty good job of handling the flow. In FY 2015, just over 64,000 new applications came in the door, but thanks to the rate at which we were adjudicating cases, they added just about 40,000 claims to the backlog. That was not great, but it was manageable,” Arthur wrote. “By contrast, more than 256,000 asylum applications were filed with the immigration courts in FY 2022, and you can add 196,000 more that were filed in the first six months of FY 2023 – at a rate six times as high as nine years prior.”
Arthur attributes the drastic increase in pending asylum applications to a change in border release policies from the Obama Administration to the Biden Administration.
While the Obama administration was able to keep the number of pending asylum applications low by detaining most illegal entrants to the U.S., the Biden administration detains far fewer.
In FY 2015, 66 percent of all aliens encountered by Border Patrol agents at the Southwest border were detained through the removal process, 19 percent were detained for at least a temporary period before release, and just 14 percent were never detained.
Those numbers flipped under the Biden administration — by FY 2021, just 10 percent of aliens encountered at the border were detained, and 64 percent were never detained.
According to Arthur, the distinction between detained and non-detained asylum cases is crucial, because if asylum applications are in detention, they have no interest in drawing out the adjudication process.
If they are not detained, however, they are not anxious to get a quick decision on their asylum application from an Immigration Judge, and draw out the process so that they can continue to live and work in the U.S.
Six months after filing a claim for asylum, a migrant is eligible for work authorization and can get a social security number and card.
Less than 14 percent of all border asylum claims adjudicated in FY 2015 were granted, Arthur wrote.
“Today, the median completion time for a detained removal case is just a week longer than it had been in FY 2015, 42 days. Meanwhile, the average time that it takes to hear a non-detained asylum claim is more than four years – twice as long as it had been nine years prior, and about 35 times as long as it takes a detained-court judge to reach a decision,” the former Immigration Judge wrote.
“You don’t need to be good at math or even logic to realize that a non-detained immigration court process that takes much longer to complete is headed in the wrong direction, and likely to fail,” he added. “And failing is what the asylum adjudication system is doing now, thanks to Biden.”
The Biden administration’s lax detainment policies lead more aliens being encouraged to enter the country and make more asylum claims, “some good, but a whole lot more weak, frivolous, or simply bogus,” Arthur wrote.
The 2020 Supreme Court opinion in DHS v. Thuraissigiam provides support for Arthur’s proposition that most asylum claims fail, and some are illegitimate:
Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obligations. Most asylum claims, however, ultimately fail, and some are fraudulent. [Emphasis added.]Justice Alito, majority opinion in DHS v. Thuraissigiam
However, the Biden administration has taken the approach of treating all asylum claims are valid, according to Arthur.
As evidence of this claim, the former Immigration Judge points to a May 1, 2022, interview between Fox News host Bret Baier and Department of Homeland Security Secretary Alejandro Mayorkas.
“Is it the objective of the Biden administration to reduce, sharply reduce, the total number of illegal immigrants coming across the southern border? Is that the objective?” Baier asked Mayorkas.
“It is the objective of the Biden administration to make sure that we have safe, legal, and orderly pathways to individuals to be able to access our legal system,” Mayorkas replied.
Arthur takes Mayorkas to mean “apply for asylum” when he says that the Biden administration wants to create a pathway for “individuals to be access our legal system.”
“And thus, ‘to live up to the ideals’ of our nation, the Biden administration has chosen to release most aliens encountered by CBP at the Southwest border in the past 30-plus months, to seek asylum in those slow and overburdened non-detained immigration courts, which has simply encouraged more to come,” Arthur wrote.