DHS Announces Expedited Asylum Processing at Northern Border to Deter Unauthorized Migrants

The Department of Homeland Security (DHS) has announced measures to reduce unauthorized migration across the U.S. border with Canada:

• Starting August 14, 2024, asylum officers conducting threshold screening interviews (TSI) for noncitizens who are processed pursuant to the U.S.-Canada Safe Third Country Agreement (STCA) are considering credible testimony, documents, and other reliable evidence available at the time of the TSI. Additional documentary evidence may not be submitted after the interview concludes, DHS announced, noting that “[a] lack of documentary evidence alone does not preclude noncitizens from establishing that they qualify for an exception to the STCA.”
• Additionally, DHS has reduced the time period for noncitizens to consult with attorneys or representatives before their TSIs from 24 hours to “a minimum of four hours beginning at the time the noncitizen is provided an opportunity to consult with a person of the noncitizen’s choosing and continuing only during the hours of 7 a.m. and 7 p.m. local time.”

“DHS carefully reviewed its implementation of the Safe Third Country Agreement with Canada and concluded that it could streamline that process at the border without impacting noncitizens’ ability to have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection,” the agency said. Migrants crossing the northern border without authorization and taken into U.S. custody increased from 2,200 in 2022 to a record 16, 500 so far in fiscal year 2024.

Read more at:

• USCIS notice (Aug. 13, 2024).
• S. to Speed Up Asylum Processing at Northern Border to Deter Migrant Crossings, CBS News (Aug. 14, 2024).

On April 9, 2024, USCIS made the following announcement:

Effective May 9, 2024, we will reject affirmative asylum applications improperly filed at service centers instead of at the lockbox with jurisdiction over your place of residence. We announced this change in filing location on May 31, 2023, and finalized the associated revision to Form I-589, Application for Asylum and for Withholding of Removal, in the Federal Register, 88 FR 60703 (Sept. 5, 2023). We expect this change to help streamline asylum processing and improve adjudication efficiency by digitizing paper filings.
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Certain categories of affirmative asylum applicants must continue to mail their applications directly to the Asylum Vetting Center.

Unaccompanied children (UCs) in immigration court proceedings must mail their applications to the lockbox.

Online filing is also available to affirmative asylum applicants who are not in immigration court proceedings and who do not have to submit their application to the Asylum Vetting Center.

​See the “Where to File” and “Special Instructions” sections of our Form I-589 webpage for more information and to learn where to file your application. You can also use our Filing Instructions Tool to determine where to file your Form I-589.

 ​Immigrants are now far more likely to face the complexities of the immigration court system alone, without an attorney. As of December 2023, only 30% of immigrants with pending cases have immigration attorneys, down from 65% just four years ago. There are not enough judged and immigration courts.

This new data comes from Syracuse University’s Transactional Records Access Clearinghouse (TRAC). On January 24, TRAC published data showing that representation rates at U.S. immigration courts have decreased significantly. These trends highlight concerns about migrants’ ability to obtain an attorney to navigate our immigration system.

Federal law generally provides immigrants the right to secure legal representation before federal immigration agencies, but immigrants must pay the cost—or secure the assistance of a pro bono (free) attorney, if they can find one. There is no right to have a free lawyer in Immigration Court.

he assistance of an attorney can be crucial to succeeding in one’s case. For example, in removal proceedings, immigrants not subject to immigration detention are five times more likely to obtain relief if they are represented. Attorneys also contribute to efficiencies in removal proceedings, including fewer hearings and more successful claims.

Cases before the immigration courts have grown substantially in the last decade. In 2013, there were 344,230 pending cases. Now the backlog stands at more than 3.2 million cases.

This is the result of many reasons. Recently, however, as undocumented migrant arrivals increase, a dramatic increase in newly filed cases during the past year--nearly 1.5 million—are causing concern about whether the supply of immigration attorneys can meet the current demand by asylum seekers.

In addition, many of those filing the asylum claims, don't see it necessary to consult or hire an attorney. Many migrants who spent US$15,000-$50,000 and more to travel to the USA to illegally cross the Southern border (many arriving from Asia or Europe), incorrectly assume that the lawyer will be provided to them for free, or take for granted that their status will be approved, or simply don't care as long as they are in the USA. Often, ethical attorneys refuse representation when the prospective clients have no legitimate claim for immigration benefits besides being interested in living in the United States. As a result, currently, only about 30% of immigrants with cases in Immigration Court have attorneys.

There is a deep and growing crisis at the Southern border, affecting our already ineffective immigration system, and creating many national security risks.

On February 21, 2023, the Biden administration recently announced a proposed asylum regulation. It would create a new asylum application process for adults and families who present themselves unannounced to U.S. border officials to request asylum, and had traveled through another country on their way to the U.S. without applying for asylum – and being denied — there.

The government insists that every asylum seeker has the power to avoid the ban by sticking to what it calls “lawful pathways”, that implies it’s unlawful to seek asylum if you enter the United States between ports of entry. And the regulation creates a whole procedure to determine whether and how the ban applies.

So, to illustrate the steps of the proposed regulation, here is “How to Seek Asylum In the United States (Under the Biden Administration’s Proposed Asylum Transit Ban), In 12 Not-At-All-Easy Steps" created by a non-profit  organization American Immigration Council.

• Step 1: If you are from Cuba, Haiti, Nicaragua, Ukraine or Venezuela, and you have not irregularly entered Panama (through the Darién) or Mexico: go to step 2. If not, go to step 3.
• Step 2: If you have people in the U.S. willing to sponsor you who make enough money, cash for airfare, a passport, and time to wait: apply for humanitarian parole, which will allow you to fly into the U.S. and work legally for 2 years. If you don’t, go to Mexico and Step 3.
• Step 3: Try to find safe shelter on the Mexican side of the border (while evading Mexican immigration enforcement if you don’t have permission to be in Mexico). If you can find it, and you have the ability to freely travel to a port of entry (instead of having your smuggler decree where you’ll be crossing), go to step 4. If not, cross into the U.S. between ports of entry, request asylum, and go to step 7 for your eventual screening interview.
• Step 4: If you have a phone that can install CBP One, the ability to read English, Spanish, or Haitian Kreyol (but really just English, since that’s what the error messages are in), and patience to try to search for appointments day after day when the limited slots fill up or the app glitches: download CBP One and keep trying to get an appointment until you access the normal asylum process. If you run out of patience, money, or hope, go to step 5.
• Step 5: Go to the port of entry – assuming there aren’t U.S. or Mexican officials positioned in front of it preventing you from setting foot on U.S. soil. Try to get the attention of an officer and request asylum if you make it onto U.S. soil, then go to step 6.
• Step 6: Wait for your credible fear interview with an asylum officer. You can argue to them that you were unable to use CBP One due to an “ongoing and serious obstacle”; the burden is on you to prove that. If you can persuade the official it is more likely than not you were thus prevented, go to the normal asylum process, starting with a credible fear interview. Otherwise, go to step 7.
• Step 7: The asylum officer will ask whether you applied for—and were denied—asylum in another country before coming to the U.S. If you didn’t, you are now presumed barred: ineligible for asylum. Go to step 8.
• Step 8: The asylum officer will now find out if you qualify for an exemption to the bar – in legal terms, whether you “rebut the presumption” of ineligibility. If you were subject to an “acute” medical emergency; in “imminent and extreme danger;” or being trafficked in a “severe form” and can demonstrate all of this to the asylum officer’s satisfaction, you will be allowed to access the normal asylum process, including a credible fear interview. Otherwise, go to step 9.
• Step 9: At this point, the interview will proceed like a normal asylum screening interview, with questions about persecution faced in your home country and why you fear return. But the standard for passing the interview has shifted. Instead of the normal asylum process, which uses a “credible” standard met by 60 percent of interviewees over the last year (though it’s been higher in the past), you’re now subject to a “reasonable” standard that about a third of interviewees have met over that period. If you can pass the higher bar, you pass the interview and will be allowed to stay in the U.S. to appear before an immigration judge; go to step 11. If you can’t, go to step 10.
• Step 10: You fail the interview. If you want to appeal to a judge, request it in writing and go to step 12; otherwise, you will be deported.
• Step 11: You are allowed to apply for asylum before the immigration judge. However, it’s not clear from the draft regulation what happens next. The text of the draft regulation doesn’t say anything further has to happen, so judging by that, you will be allowed to access the normal asylum process. But the way DHS says the new system will work—in the preamble published in the Federal Register alongside the draft regulation, and on its website—is more complicated, and suggests you may still be ineligible for asylum and could only apply for “withholding of removal.” That means it’s possible the final regulation will be changed to reflect the more complicated process, and if not, the ambiguity may be used to your disadvantage. For that, go to step 12.
• Step 12: The judge reviews your interview transcript with the asylum officer and does their own review of whether you have demonstrated that you meet an exception to the bar (like the asylum officer did in step 8). If they find you do, you will be allowed to access the normal asylum process. If not, they’ll then review whether you demonstrate “reasonable fear” (as in step 9). If they find you do have a “reasonable fear,” you may be allowed to access the normal asylum process, or may be restricted to withholding of removal. If they find you don’t, you will be deported.

This chart is not meant to be legal advice. Because if this seems convoluted—not to mention unclear—then know that the government is giving both itself and the public less than the usual amount of time to comment on and revise the draft regulation before it’s finalized.

Please note that this is still a proposed rule. The period for public comment is short—30 days instead of 60—and the time the government will take to read those comments could be constrained. The Biden administration has said that it anticipates it will have a new policy regime in place to succeed Title 42 when the national COVID emergency ends, which is currently set to happen on May 11, 2023. This regulation is written to serve as that policy: it says it won’t go into effect until Title 42 ends, which means the administration thinks there’s a good chance it will be finalized before then. That gives the government as little as six weeks for a process that often takes up to a year.

Read more here.

07-28-2022 Update: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and Employment Authorization Document eligibility based on a pending asylum application, your filing date will still be the date that we received your properly filed Form I-589 (not the date we processed it). If you did not properly file your application, we will reject it and note any deficiencies in your filing. If you do not receive your receipt notice in a timely manner, please do not submit multiple Forms I-589, as this may further delay your case.
Properly filing your Form I-589 allows us to process your form with fewer delays. Please review the reminders below to ensure you are properly filing your Form I-589:

• You must submit your application for asylum within one year of arriving in the United States (one-year filing deadline), unless you can establish that there are changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year.
• You must type or print all of your answers in black ink.
• You must provide the specific information requested about you and your family and answer all the questions on the form. If any question does not apply to you or you do not know the information requested, answer “none,” “not applicable,” or “unknown.”
• If you file your application with missing information, we may return it to you as incomplete.
• You are strongly urged to attach additional written statements and documents that support your claim. Your written statements should include events, dates, and details of your experiences that relate to your claim for asylum.
• Put your Alien Registration Number (A-Number), if you have one, your name (exactly as it appears in Part A.I. of the form), the date, and your signature on each supplemental sheet and on the cover page of any supporting documents.
• Follow the instructions in the Where to File section and the Special Instructions section on the Form I-589 webpage to determine where to file your Form I-589.
• If you are applying for asylum as an Afghan Operation Allies Welcome (OAW) parolee, please review the Afghan Operation Allies Welcome (OAW) Parolee Asylum-Related Frequently Asked Questions page.

Please note: Do not submit any Forms I-589 to the Vermont Service Center (VSC). The VSC is not currently processing Form I-589 and submitting your Form I-589 to the VSC will result in additional delays.
We continue to experience receipt issuance delays in other workloads across some service centers. 

​Form I-589. 

TRAC, Nov. 10, 2016 -

TRAC has just published the ninth in its long running series of reports covering each Immigration Judge's decisions on asylum cases. The latest report series consists of 268 separate reports and includes each Immigration Judge who decided at least 100 asylum cases between FY 2011 and FY 2016.

Each individual report provides a short biography for that judge, along with details on the judge's overall denial rates during this six year period. Separate charts provide a time series view of the judge's decisions year-by-year, along with a comparison of the judge's denial rate as contrasted with the rate for the nation as a whole, along with a comparison with just those judges sitting on the same court.

Some judge's asylum denial rate could be as low as 30%, while another judge's denial rate could be almost 100%.

​For example, in 2016, Omaha, Nebraska Immigration Court asylum denial rate is approx. 80%. Average national denial rate is approx. 50%.

To see any particular Judge's denial rate statistics, use the drop down menu.

Reasons for judge-to-judge differences in asylum denial rates are highlighted including whether the asylum seeker was represented or not, and the countries from which these individuals came. This is contrasted with patterns for the United States as a whole. Information presented is current through the end of September 2016.

To view a particular judge's report, go to:
http://trac.syr.edu/immigration/reports/judgereports/

For an index to the full list of TRAC's free immigration tools go to:
http://trac.syr.edu/imm/tools/