5 bold reforms to restore the asylum process

Since 2016, the Trump administration has waged war against asylumseekers. Because of amended regulations, legal opinions that undo precedent and a series of executive orders, asylum is increasingly elusive.

These changes largely targeted Central Americans fleeing gang and genderbased violence, but they negatively affect all asylumseekers. Just making it to the U.S. to apply for asylum has become nearly impossible. The Department of Homeland Security has returned more than 66,500 people to Mexico to await court hearings under its Remain in Mexico program.

Since March, under the guise of preventing COVID-19, U.S. Customs and Border Protection has expelled more than

150,000 people, including thousands of unaccompanied children. Anyone caught entering the U.S. is fingerprinted and expelled with no ability to apply for asylum. While courts have intervened, the prognosis for asylum-seekers is bleak. Four more years may be the death of asylum.

Although I long for how things were, our asylum system was already deeply flawed. The prospect of a new administration is an opportunity to imagine something better. Why just undo the last four years when we can be bold? I offer five reforms.

Adjudicate all claims: First, the specialized Asylum Offices within U.S. Citizenship and Immigration Services, or USCIS, should adjudicate all initial asylum claims.

For applicants in removal proceedings, professional asylum officers conduct an initial screening called a credible fear interview and send approved cases to immigration judges. However, immigration courts are facing historic backlogs, so asylum-seekers wait years for decisions. Having USCIS adjudicate cases first would alleviate the backlogs in immigration court and decrease the wait times. Anyone denied by USCIS could appeal to the immigration judge. In fact, this process already exists for unaccompanied minors and works well.

Adopt refugee guidelines: Second, the U.S. should formally adopt guidance issued by the U.N. High Commissioner for Refugees, or UNHCR. For example, UNHCR guidance defines the meaning of “membership in particular social group” — one of the grounds for which a person can be granted asylum.

Adopting the UNHCR definition would eliminate much litigation about what particular social groups are viable. Following UNHCR guidance would prevent attempts to eliminate asylum for certain groups.

The UNHCR also publishes country-specific and issue-specific guidance, which, if followed by USCIS and immigration judges, would lead tomore consistent decisions. Currently, some social group claims, such as women unable to leave a domestic relationship, are routinely granted in certain judicial circuits and virtually impossible to win in others. That should not be the case.

End detentions: Third, the U.S. should end detention of asylum-seekers. Most asylum-seekers have someone to support them in the U.S. As immigration detention has expanded, so too has detention of asylum-seekers with no criminal history. This is a waste of federal tax revenue of about $6.5 million per day.

Detention has become punitive although seeking asylum is a right. Alternatives to detention have proven effective for a fraction of the cost.

Appoint counsel:

Fourth, indigent asylumseekers should receive court-appointed counsel. Judge Dana Leigh Marks, president emeritus of the National Association of Immigration Judges, described her job as hearing “death penalty cases in a traffic court setting.” Yet those who can’t pay a lawyer must defend themselves in a foreign system.

Our system puts asylumseekers, regardless of age, education or literacy, up against lawyers with specialized immigration training. That is not a fair fight. If our Constitution guarantees the right to counsel in criminal proceedings to avoid unjust deprivation of liberty, surely we can do the same for asylum-seekers facing serious harm or death if removed.

Increase resettlement: Finally, dramatically increase refugee resettlement. Someone granted asylum is a refugee. The key difference is where the vetting occurs. If the U.S. accepted more refugees identified outside our borders, fewer people would come here seeking asylum.

There is much to consider in choosing candidates up and down the ballot. Remember that your vote impacts the fate of tens of thousands of people who left everything they know to seek protection on our shores. They do not have a voice in our democracy, but you do.

Erica B. Schommer is a clinical professor of law who leads the Immigration and Human Rights Clinic at the St. Mary’s University School of Law. The views are solely those of the author and do not represent the views of St. Mary’s University. The university neither supports nor opposes the parties mentioned.