By Kathleen Bush-Joseph
Outmatched: The U.S. Asylum
System Faces Record Demands
In Search of Control, United States of America Country Report
Outmatched: The U.S. Asylum
System Faces Record Demands
By Kathleen Bush-Joseph
Migration Policy Institute
February 2024
In Search of Control, United States of America Country Report
Contents
1 Introduction .............................................................................................................................................. 1
2 Background and Relevant Developments ........................................................................ 3
3 International Legal Framework ................................................................................................. 6
A. International Treaties ................................................................................................................................................6
B. Domestic Implementing Legislation: The Refugee Act of 1980 .................................................... 7
C. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act ...............................9
D. Post-1996 Statutory Provisions ....................................................................................................................... 10
E. Regulations on Asylum Eligibility and Procedures ..............................................................................11
F. Case Law on Asylum .............................................................................................................................................. 12
4 Border Management in Policy and Practice .................................................................. 13
A. Border Agencies ........................................................................................................................................................15
B. Reception Process ...................................................................................................................................................15
C. The Circumvention of Lawful Pathways Rule ......................................................................................... 17
5 Access and National Asylum Procedures ........................................................................ 20
A. The U.S. Asylum System ....................................................................................................................................... 20
B. Armative Asylum Application Process ....................................................................................................23
C. Defensive Asylum Application Process and Appeals .........................................................................25
D. Standards for Granting Asylum and Limitations on Access...........................................................26
E. Withholding of Removal and Protection Under the Convention Against Torture .......... 27
F. Other Protections for Unauthorized Migrants Already in the United States.......................28
G. Legal Representation ...........................................................................................................................................30
6 Extraterritorial Access to Asylum........................................................................................... 31
A. Refugee Resettlement Program and Humanitarian Parole Authority .................................... 31
B. Parole Programs for Certain Nationalities ................................................................................................. 33
C. Safe Mobility Oces ...............................................................................................................................................35
D. Central American Minors Program ................................................................................................................36
7 Return in the Context of Migration Cooperation ..................................................... 36
A. International Agreements to Accept Returns ........................................................................................37
B. Statistics .........................................................................................................................................................................39
C. Interdictions ................................................................................................................................................................ 40
8 Conclusion ............................................................................................................................................... 42
About the Author .......................................................................................................................................... 44
Acknowledgments ....................................................................................................................................... 45
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OUTMATCHED: THE U.S. ASYLUM SYSTEM FACES RECORD DEMANDS OUTMATCHED: THE U.S. ASYLUM SYSTEM FACES RECORD DEMANDS
1 Introduction
The United States has a long tradition of providing refuge and has welcomed millions of refugees and
asylum seekers eeing their countries. However, at a time of mass displacements around the world,
including unprecedented numbers and new ows in the Western Hemisphere, the country’s humanitarian
protection system is under greater strain than ever with record numbers of migrants seeking asylum. In the
face of nearly 2.5 million irregular arrivals at the U.S.-Mexico border in scal year (FY) 2023 and a backlog of
2 million asylum applications,
1
the Biden administration has put new measures into place that restrict access
to asylum for some. And the U.S. Congress is debating statutory changes to asylum law that would provide
major funding infusions for border control but would also tighten asylum provisions that have been in place
for decades.The pressure to adapt to this new era of migration will continue to grow.
Repudiating President Donald Trump’s restrictive immigration and asylum policies, President Joe Biden’s
administration has recommitted the U.S. immigration system to welcoming migrants and has created new
programs for people to arrive through orderly processes. Simultaneously, his administration has ushered in
a new border management system that seeks to establish incentives for asylum seekers to enter the United
States at legal ports of entry and disincentives to crossing illegally, including by restricting access to asylum.
The goals of the U.S. protection system continue to be to
provide lawful status to those in need, and to return those
deemed ineligible to remain. The United States grants asylum
and refugee statuses, which oer permanent residence,
based on the denitions included in the 1951 Refugee
Convention and the 1967 Protocol, and subsidiary protections
under the Convention Against Torture.But U.S. law diers
from international law in that it stipulates that asylum is
discretionary, and government ocials utilize this legal latitude in administering the asylum system.U.S. law
also allows ocials to grant humanitarian parole, which enables lawful entrance into the United States on a
temporary basis, and Temporary Protected Status (TPS) may be granted to migrants already in the country
who lack authorization to be there. The temporary protections may be more vulnerable to litigation and to
being cancelled by a future administration.
Without a more ecient system and resources for adjudicating asylum cases and expanded lawful pathways
to meet the growing protection needs, the nation’s immigration courts and asylum oces will become
increasingly overwhelmed and individuals in need of protection will not receive it in a timely manner. Yet
U.S. immigration laws, written decades ago, that would provide other avenues for being admitted to the
United States remain stuck in the past and are no longer t for purpose.
1 U.S. Customs and Border Protection (CBP), “Southwest Land Border Encounters,” accessed October 21, 2023; 1 million cases were
pending at U.S. Citizenship and Immigration Services (USCIS) as of November 2023 and another 1 million at the immigration
courts as of October 2023. See USCIS, “Asylum Quarterly Engagement Fiscal Year 2023, Quarter 4, Presentation, September 19,
2023,” September 19, 2023; Transactional Records Access Clearinghouse (TRAC), “Immigration Court Asylum Backlog,” accessed
November 25, 2023.
The goals of the U.S. protection
system continue to be to
provide lawful status to those
in need, and to return those
deemed ineligible to remain.
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OUTMATCHED: THE U.S. ASYLUM SYSTEM FACES RECORD DEMANDS OUTMATCHED: THE U.S. ASYLUM SYSTEM FACES RECORD DEMANDS
Immigration issues have become so politically charged that Congress has been unable to update key asylum
and immigration laws since the 1990s, making large-scale reforms nearly impossible. Facing this logjam, the
Biden administration has utilized its executive authority to modernize immigration processes and introduce
large-scale programs to provide temporary protections for hundreds of thousands of irregular arrivals.
This report examines the current state of the U.S. protection system, with a particular focus on recent
changes the Biden administration has been making in asylum processes and temporary protections, as well
as the challenges and lessons the U.S. experience may oer for other systems and countries.
BOX 1
About the Clingendael Institute’s Comparative Asylum Project
In December 2022, the Dutch government initiated a working group focusing on the “fundamental
reorientation of the current asylum policy and design of the asylum system.” Its aim is to further structure
the asylum migration process, to prevent and/or limit irregular arrivals, and to strengthen public support
for migration. One of the working group’s assumptions is that the externalization of the asylum procedure
could be a feasible policy option through eective procedural cooperation, with a country outside the
European Union, that “passes the legal test.” In other words, if it would be operationalized in conformity with
(international) legal standards and human rights obligations. In that context, the working group expressed
the need for more insight on how governments with other legal frameworks than the Netherlands, as an
EU Member State, deal with the issue of access to asylum, either territorial or extraterritorial, in order to
provide thoughts or angles for evidence-based policy choices by the Dutch government, at national and/or
European level.
The purpose of this comparative research project, led by the Clingendael Institute, was to collect existing
knowledge about the asylum systems of Australia, Canada, Denmark, the Netherlands, and the United
States, and to complement this with an analysis of national legislation, policy, and implementation
practices, focusing on access to (extra-)territorial asylum. While there are overlaps, each of the asylum and
refugee protection systems in the research project operates in very dierent geographical situations and
political contexts.
Beyond the ve country case studies, a separate synthesis report that is based on a comparative analysis of
the respective legal frameworks and the asylum systems of those countries addresses directions for Dutch
courses of action. The synthesis report and the country case studies can be accessed here:
https://www.clingendael.org/publication/search-control
The main question to be answered in the national reports is: Which instruments are applied or proposed by
Australia, Canada, Denmark, the Netherlands, and the United States concerning or aecting access to asylum
procedures and humanitarian protection?
Therefore, the country research focuses on several central elements of the national asylum systems,
including their access to, and implementation of, interdiction practices, border and asylum procedures, and
other legal pathways. These were put in a broader public, political, and legal context, taking into account
the countries’ national policy aims and objectives.
This U.S. country report was developed by the Migration Policy Institute (MPI) as part of the Clingendael
research project.
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The report begins by outlining the applicable legal framework and the rapid changes in migration ows
at the U.S.-Mexico border that have accelerated since 2014. Reviewing the adjudication system for asylum
claims, the report underscores the growing gap between resources and the record numbers of recent
arrivals seeking asylum and work authorization. Next, it analyses new nationality-based parole programs
and the introduction of Safe Mobility Oces (SMOs), which aim to provide greater access to protection
in the Western Hemisphere. Finally, the report examines the United States’ increased capacity for returns,
which relies heavily on cooperation from Mexico. The analysis reects research and conversations with
a diverse group of stakeholders—current and former government ocials, immigration lawyers and
advocates, legal service providers, academics, and others who have administered and studied the U.S.
immigration system.
2 Background and Relevant Developments
The number of asylum applications led in the United States has risen dramatically in recent years, driven
by record encounters at the U.S.-Mexico border. In scal year (FY) 2022 (October 1, 2021 to September
30, 2022), U.S. ocials recorded just under 2.4 million encounters
2
at the Southwest border, with many
migrants released into the country and allowed to apply for asylum. In FY 2023, there were nearly 2.5 million
encounters.
3
The United States operates two asylum processes—
armative and defensive—depending on how individuals
enter the country and how border ocials process them.
Those crossing the border without authorization or
who are in the United States and placed into removal
proceedings in immigration court are generally in the
defensive asylum process, while individuals who are not in
removal proceedings may apply for asylum armatively
at U.S. Citizenship and Immigration Services (USCIS). Regardless of which process they are in, migrants must
apply for asylum within one year of U.S. entry.
4
Defensive asylum applications are heard by immigration
judges at the Executive Oce for Immigration Review (EOIR) as part of the overall removal proceeding.
Both USCIS and EOIR received record numbers of asylum applications in FY 2023. USCIS received 431,000
armative asylum applications, with Venezuelans, Cubans, Colombians, Nicaraguans, and Haitians the
top nationalities.
5
EOIR received 316,000 defensive asylum applications as of the third quarter of FY 2023
(nationality data are unavailable).
6
Given each application can cover multiple individuals, the total number
2 Encounters is the term used by CBP to encompass apprehensions occurring at and between ports of entry under Title 8 of the U.S.
Code, as well as the expulsions that were carried out between March 2020 and May 2023 under Title 42, a public health authority
that was activated during the COVID-19 pandemic.
3 CBP, “Southwest Land Border Encounters.”
4 There are limited exceptions to this requirement, such as for unaccompanied children and migrants who can show changed or
extraordinary circumstances. See USCIS, “The Armative Asylum Process,” updated September 13, 2023.
5 USCIS, “Asylum Quarterly Engagement Fiscal Year 2023, Quarter 4, Presentation, September 19, 2023.”
6 Department of Justice (DOJ), Executive Oce for Immigration Review (EOIR), “Defensive Asylum Applications” (fact sheet, July
2023).
The number of asylum applications
led in the United States has risen
dramatically in recent years, driven
by record encounters at the U.S.-
Mexico border.
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OUTMATCHED: THE U.S. ASYLUM SYSTEM FACES RECORD DEMANDS OUTMATCHED: THE U.S. ASYLUM SYSTEM FACES RECORD DEMANDS
of people seeking asylum could be higher.
7
By comparison, in FY 2013, USCIS received 44,000 asylum
applications and EOIR received 24,000.
8
Most asylum seekers today arrive at the U.S.-Mexico border without authorization but are not screened for
eligibility for protection there due to resource constraints. Instead, border ocials release migrants into the
country to await removal proceedings in the immigration courts. Whether screened at the border or not,
asylum seekers must le their asylum applications in the U.S. interior with USCIS or EOIR.
9
Adjudications have not kept up with applications, and backlogs have ballooned as a result. USCIS now has
more than 1 million pending armative asylum applications,
10
with some applicants waiting years for an
interview. At EOIR, there were 851,000 pending asylum cases as of the third quarter of FY 2023, out of 2.16
million immigration court cases.
11
These numbers do not capture migrants who have been allowed to enter
the country but have not yet led an asylum claim, whether defensively before EOIR in connection with
removal proceedings or armatively before USCIS. It is dicult to determine asylum eligibility rates due to a
variety of factors reviewed below, but in FY 2022, USCIS granted asylum to about 14,000 individuals and the
immigration courts granted asylum to 22,000.
12
Regional dynamics have played a strong role in shaping the trends of increasing arrivals and diversifying
ows. Until 2014, migrants encountered at the U.S.-Mexico border were mostly single, Mexican men seeking
to enter for work. Today, record numbers of families (“family units” in U.S. Customs and Border Protection
parlance) from Latin America and beyond are arriving at the Southwest border in search of protection, as
are high levels of unaccompanied children. Violence, poverty, political instability, and environmental factors
and the economic and other destabilizing eects of the COVID-19 pandemic are among the drivers of mass
displacement of Cubans, Haitians, Nicaraguans, and Venezuelans, as well as ongoing high migration from
northern Central America. At the same time, a growing number of individuals from beyond the Western
Hemisphere (“extracontinental” migrants) have sought asylum in the United States.
The Migration Policy Institute (MPI) estimates that there were 11.2 million unauthorized immigrants in the
United States as of 2021, the most recent year for which data are available.
13
The number is expected to
grow based on the high number of recent unauthorized arrivals.
7 Data on repeat applications are not available. An example of a repeat application could include when a migrant or their
representative les an asylum application online with USCIS after having already led a paper application. This reportedly
occurred when USCIS had a “frontlog” that caused months-long wait times for receipts for paper applications and the option to
le online was introduced in November 2022. See USCIS, “USCIS Announces Online Filing for Armative Asylum Applications,”
November 9, 2022; Department of Homeland Security (DHS), CIS Ombudsman, “June 28, 2023: Defensive Asylum Applications
(Form I-589),” accessed November 21, 2023.
8 Andorra Bruno, Immigration: U.S. Asylum Policy(Washington, DC: Congressional Research Service, 2019), 33; EOIR, “Defensive
Asylum Applications.”
9 The small number of border arrivals processed under the June 2022 asylum ocer rule, which is discussed below, are the
exception. Their border screening interviews are treated as asylum applications, therefore they do not need to le separate
applications, though they may submit additional evidence.
10 USCIS, “Asylum Quarterly Engagement Fiscal Year 2023, Quarter 4, Presentation, September 19, 2023.”
11 Irene Gibson, Annual Flow Report Refugees and Asylees: 2022 (Washington, DC: DHS Oce of Homeland Security Statistics, 2023).
12 EOIR, “Total Asylum Applications”; USCIS, “Immigration and Citizenship Data Asylum Division Monthly Statistics Report Fiscal Year
2022, October 2021 to September 2022,” accessed September 27, 2023.
13 Jennifer Van Hook, Julia Gelatt, and Ariel G. Ruiz Soto, “A Turning Point for the Unauthorized Immigrant Population in the United
States,” Migration Policy Institute (MPI) commentary, September 2023.
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Political and Economic Context
Politically, asylum has become a fraught issue in the United States, as in other key destination countries.
President Donald Trump, a Republican, campaigned on a promise to “build the wall” at the U.S.-Mexico
border, and his administration attempted to enact a range of policies restricting access to asylum, most of
which were blocked by the courts. Since coming to oce in 2021, Biden, a Democrat, has reiterated the U.S.
commitment to providing protection to those in need, but he has faced challenges reversing the Trump
agenda, in part due to litigation by Republican-led states.
Local ocials have declared emergencies due to high migrant
arrivals in major interior cities. While Democrats have historically
been the more welcoming political party on immigration,
Democratic oceholders have criticized the federal government
for a lack of coordination and funding for shelter services in
particular. Party leaders have called for expediting work permits
to allow recent arrivals to support themselves and move out of
shelters. In response, the Biden administration announced plans to speed the issuance of work permits
and in September 2023 granted almost half a million Venezuelan migrants the opportunity to apply for
temporary protection and work authorization.
14
Republicans, who are generally more focused on border enforcement, have implemented state policies in
Texas and Florida to crack down on unauthorized migration. At the national level, congressional Republicans
have introduced legislative proposals that would permanently bar access to asylum for many individuals,
curtail the executive branch’s ability to create alternative lawful means of entry for asylum seekers and
others, and limit the ability to provide temporary protection to those already present in the United States
without legal status. Republican presidential candidates have also called for extreme measures, including
bombing cartels in Mexico, to stop what some call an “invasion” at the Southwest border.
15
With publics
increasingly anxious over record arrivals at the border and in cities in the U.S. interior, immigration will
undoubtedly feature prominently in the 2024 presidential election cycle.
The politicized nature of the issue notwithstanding, polls indicate that the majority of the U.S. public
expresses support for keeping immigration overall at current or increased levels as the country’s
unemployment rate remains low and population aging rises, reducing the number of working-age adults.
16
The overarching legal framework for immigration, which rests on the pillars of laws enacted in 1952 and
1965, has not changed signicantly since the 1990s. There are 1.8 million applicants in the employment-
based backlog for legal permanent residence, meaning that wait times stretch to decades to obtain a
green card (and for many to lawfully enter the United States).
17
While the asylum system is separate from
the employment one in law, the two have become intertwined as asylum seekers ll U.S. job vacancies
and many work without authorization soon after arrival. Individuals are eligible to receive a work permit
14 DHS, “The Biden-Harris Administration Takes New Actions to Increase Border Enforcement and Accelerate Processing for Work
Authorizations, While Continuing to Call on Congress to Act” (fact sheet, September 2023).
15 The Economist, “Why America’s Republicans Want to Bomb Mexico,” The Economist, September 14, 2023; The New York Times,
“Where the Republican Candidates Stand on Immigration,” The New York Times, accessed November 22, 2023.
16 Lydia Saad, “Americans Still Value Immigration, But Have Concerns,” Gallup, July 13, 2023.
17 David Bier, “1.8 Million in Employment-Based Green Card Backlog,” CATO Institute blog, August 29, 2023.
Politically, asylum has
become a fraught issue in
the United States, as in other
key destination countries.
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no sooner than 180 days after ling an asylum application (and must le a separate application for a work
permit), and as wait times for asylum adjudication stretch on for years, the asylum system is increasingly
functioning as a new proxy for labour migration in the United States.
3 International Legal Framework
One of the main reasons that the U.S. asylum system is in crisis today is the rigidity of the legal framework
for U.S. immigration. The immigration system is made up of four streams: family reunication; employment-
based, with quotas that were set in 1990; humanitarian protection, which is an area that is numerically
exible; and a diversity lottery of 55,000 visas for countries under-represented in the other categories. The
lack of exibility in the non-humanitarian areas of immigration law means that in addition to migrants who
need protection, many others have applied for asylum as a means to reunite with family members and/
or work in the United States. Moreover, some migrants may have multiple motives that include requesting
protection and seeking opportunity for themselves and their family members.
The humanitarian protection stream encompasses refugee
admissions from abroad through an established resettlement
system and, more recently, people applying for asylum
from within the United States. The main types of protection
available are based on the 1951 United Nations (UN)
Convention Relating to the Status of Refugees (“the 1951
Convention”), and the UN Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”). U.S. law also
provides temporary forms of protection such as humanitarian parole for those seeking admission, and
Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) for migrants already residing in
the country without authorization. The system is largely based on laws from the 1980s and 1990s, when
most asylum applicants ew to airports and border arrivals were predominantly economic migrants from
Mexico. Congress’ failure for more than three decades to update immigration laws and adequately fund all
aspects of the immigration system has resulted in a system that is no match for today’s realities. Therefore,
presidents have increasingly relied on their executive authority to change administrative rules. But resource
and litigation constraints, combined with the inherently limited changes that can be made through
executive action within the existing statutory structure, have limited their eects.
A. International Treaties
The United States has a federalist system of government, and immigration enforcement is generally the
purview of the federal government (though this right has not gone uncontested, including at present).
As originally enacted, U.S. immigration laws, which are incorporated into the Immigration and Nationality
Act, did not contain refugee or asylum provisions.
18
In 1968, the United States acceded to the UN Protocol
Relating to the Status of Refugees (the “1967 Protocol”) and, by incorporation, Articles 2-34 of the 1951
18 Bruno, Immigration: U.S. Asylum Policy, 9.
One of the main reasons that
the U.S. asylum system is in crisis
today is the rigidity of the legal
framework for U.S. immigration.
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Convention.
19
The United States ratied the Convention Against Torture in October 1994.
20
The United
States is not party to binding regional agreements that provide other legal bases for international
protection beyond the refugee denition as, for example, Latin American countries are under the Cartagena
Declaration on Refugees or European countries under the European Convention on Human Rights.
B. Domestic Implementing Legislation: e Refugee Act of 1980
Despite becoming a party to the 1967 Protocol, the United States did not enact domestic implementing
legislation with a conforming denition for “refugee” or a mandatory nonrefoulement
21
provision until
the passage of the Refugee Act of 1980.
22
The main intent of the Refugee Act was to provide a legal basis
for external processing for refugee resettlement, not asylum. This was because the United States was not
receiving high numbers of asylum seekers then, but since the 1950s had been relying on humanitarian
parole to provide protection for groups eeing conict or instability.
23
As amended by the Refugee Act, U.S. immigration law provides for the granting of asylum to a person who
applies in accordance with applicable requirements and is determined to be a refugee. A refugee is dened
as a person who is outside their country of nationality and is unable or unwilling to return to, or to avail
themselves of the protection of, that country because of persecution or a well-founded fear of persecution
based on one of ve protected grounds: race, religion, nationality, membership in a particular social group,
or political opinion.
24
Notably, the U.S. statute varies from international law in that a grant of asylum or refugee status is
discretionary, while the 1967 Protocol and the 1951 Convention stipulate that someone who meets the
relevant standards “shall” be considered a refugee.
25
As with the Trump administration before it, the Biden
administration has justied regulations that restrict access to asylum based on this element of discretion,
though federal courts have repeatedly struck down such rules as contrary to other provisions of U.S. asylum
and administrative law, and the 1951 Convention.
26
19 Bruno, Immigration: U.S. Asylum Policy, 8.
20 Michael John Garcia, The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens
(Washington, DC: Congressional Research Service, 2006).
21 The principle of nonrefoulement prohibits countries from “returning a refugee or asylum seeker to territories where there is a risk
that his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social
group, or political opinion.” See Sir Elihu Lauterpacht and Daniel Bethlehem, “Refugee Protection in International Law: The Scope
and Content of the Principle of Non-Refoulement: Opinion (2.1),” United Nations High Commissioner for Refugees (UNHCR),
accessed November 21, 2023.
22 Bruno, Immigration: U.S. Asylum Policy, 9.
23 Julia Gelatt and Doris Meissner, “Straight Path to Legal Permanent Residence for Afghan Evacuees Would Build on Strong U.S.
Precedent,” MPI commentary, March 2022.
24 United Nations (UN) Convention Relating to the Status of Refugees (“the 1951 Convention”), “Article 1 Denition of the Term
‘Refugee’,” 1951.
25 UNHCR,Comments of the United Nations High Commissioner for Refugees on the Proposed Rule from the U.S. Department of Justice
(Executive Oce for Immigration Review) and the U.S. Department of Homeland Security (U.S. Citizenship and Immigration Services):
“Circumvention of Lawful Pathways” (UNHCR statement, March 20, 2023), 4; federal courts have held that the 1967 Refugee Protocol
is not directly enforceable in U.S. courts. Therefore, the protocol does not confer judicially enforceable rights or duties in and of
itself, beyond those granted by the domestic implementing legislation. See Hillel R. Smith, The Biden Administration’s Final Rule on
Arriving Aliens Seeking Asylum (Part Two) (Washington, DC: Congressional Research Service, 2023).
26 See discussion of the circumvention of lawful pathways regulation in the Border section of this report.
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U.S. law distinguishes between applicants for asylum or refugee
status based on their physical location. Refugee applicants
are outside the United States, while applicants for asylum are
physically present in the country, either at the border or in the
U.S. interior. USCIS and the State Department grant refugee
status outside the country. Asylum can be granted by USCIS,
a branch of the Department of Homeland Security (DHS), or
EOIR, the administrative courts division within the Department of Justice (DOJ), depending on the type of
application led. There are no numerical limitations for those seeking asylum within the U.S. territory, but
the number of refugees admitted from overseas is subject to an annual cap set by the president following a
required consultation with Congress. The refugee resettlement cap for FY 2024 was set at 125,000, the same
level as earlier Biden years.
27
Upon arrival, refugees are geographically distributed across the United States
and receive short-term resettlement assistance. By contrast, there is no federally organized distribution
scheme for asylum seekers, who generally are not eligible for public benets apart from emergency medical
services.
28
Withholding of Removal and Convention Against Torture Protection
To make U.S. law consistent with the 1951 Convention language on nonrefoulement, the Refugee Act also
revised a provision of U.S. law on a lesser form of protection—withholding of deportation, which is now
referred to as withholding of removal.
29
Thus, if a migrant is found ineligible for asylum, the individual may
be considered for withholding. Per the Refugee Act, ocials are prohibited from removing a noncitizen
whose life or freedom would be threatened because of one of the ve protected grounds.
Apart from asylum and withholding, migrants may receive protection under the Convention Against Torture
by showing it is more likely than not that they will be tortured in the country of removal. The protection
received is deferral of removal from the United States, which is granted after a formal order of removal is
entered in immigration court.
Recipients of withholding or CAT protection are not permitted to adjust to lawful permanent resident status;
individuals granted asylum may adjust to lawful permanent residence (known as getting a green card) after
one year.
30
Refugees are required to apply for lawful permanent residence within a year of U.S. arrival.
31
Regulations provide that an individual granted withholding or deferral of removal may apply for work
authorization, and that U.S. ocials may remove an individual granted such protections to a third country.
32
27 MPI Data Hub, “U.S. Annual Refugee Resettlement Ceilings and Number of Refugees Admitted, 1980-Present,” accessed November
25, 2023.
28 In addition to emergency medical services, asylum seekers are generally eligible for non-cash disaster relief assistance and English
language instruction. Certain groups (such as asylum seekers who are pregnant, children, or youth who meet certain criteria) are
eligible for additional medical, nutritional, early childhood development, and nancial support. See Essey Workie, Lillie Hinkle, and
Stephanie Heredia, The Missing Link: Connecting Eligible Asylees and Asylum Seekers with Benets and Services (Washington, DC: MPI,
2022).
29 Bruno, Immigration: U.S. Asylum Policy, 9, 16.
30 Bruno, Immigration: U.S. Asylum Policy, 2.
31 USCIS, “Green Card for Refugees,” updated June 26, 2017.
32 Bruno, Immigration: U.S. Asylum Policy, 20.
U.S. law distinguishes between
applicants for asylum or
refugee status based on their
physical location.
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C. e 1996 Illegal Immigration Reform and Immigrant Responsibility
Act
In response to growing numbers of asylum lings and calls to reform access to work authorization for
asylum seekers, Congress in 1996 passed the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA).
33
The law, among other provisions, established that a noncitizen who is present or arrives in the
United States, regardless of whether they arrived with authorization or not, can apply for asylum.
Asylum Provisions
Under IIRIRA, an asylum seeker must apply for protection within one year of arriving; an individual is
ineligible to apply if their prior asylum application was denied.
34
The law also provided that a person is
ineligible to apply for asylum if removable pursuant to a safe third country agreement.
35
IIRIRA also added
grounds for denying asylum (listed in the Asylum section below).
36
IIRIRA established that asylum seekers who are not otherwise eligible for employment shall not be granted
work authorization until 180 days after ling an asylum application. The law codied the intent that the
government adjudicate the application within 180 days of ling. Asylum seekers are generally ineligible for
federal public benets, whether during this 180-day period or afterwards, leaving local governments and
nonprot organizations responsible for providing services for those who otherwise lack support.
Expedited Removal and Credible Fear of Persecution Screenings
In the context of then rising U.S.-Mexico border encounters of mostly single Mexican men seeking to enter
the United States illegally to work, IIRIRA established a new immigration enforcement mechanism known
as expedited removal. This process allows ocials to quickly remove arriving migrants without a hearing
before an immigration judge provided the individual lacks an entry document or used counterfeit, altered,
or otherwise fraudulent or improper documents. Under IIRIRA, unlawful re-entry is a criminal oense, and
migrants deported under expedited removal are barred from re-entering the country for ve years.
37
IIRIRA
included an exception to the expedited removal process by which a migrant seeking protection would be
screened for a credible fear of persecution. This exception was established at a time when airports were
the primary entry point for asylum seekers. Since most border arrivals were economic migrants at the time,
ocials did not expect that the credible-fear screening would be frequently used.
33 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104–208, U.S. Statutes at Large 110 (1996): 3009-
546.
34 An exception to both restrictions applies if a noncitizen can show changed circumstances.
35 The United States has only one safe third country agreement, which is in eect with Canada. The agreement provides that
migrants must seek asylum in the rst country of arrival unless they meet an exception. See Muzaar Chishti and Julia Gelatt,
“Roxham Road Meets a Dead End? U.S.-Canada Safe Third Country Agreement Is Revised,” Migration Information Source, April 27,
2023.
36 Bruno, Immigration: U.S. Asylum Policy, 15.
37 The executive branch may expand the application of expedited removal to individuals who entered without inspection and
who have been in the United States for less than two years per a dierent statutory authority. Ocials have used this authority
at various points to apply to arrivals by sea and near the U.S.-Mexico border. See Doris Meissner, Faye Hipsman, and T. Alexander
Aleiniko, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018), 2; Jessica Bolter, Emma Israel, and
Sarah Pierce, Four Years of Profound Change: Immigration Policy during the Trump Presidency (Washington, DC: MPI, 2022), 45.
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Today, most migrants arriving at the U.S. border turn themselves in to ocials in order to seek protection.
Under U.S. law, as amended by IIRIRA, an individual subject to expedited removal who claims a fear of return
to their home country is to be interviewed by an asylum ocer
to determine if a credible fear of persecution exists.
38
Credible
fear means that “there is a signicant possibility, taking into
account the credibility of the statements made by the alien in
support of the alien’s claim and such other facts as are known to
the ocer, that the alien could establish eligibility for asylum.”
39
Individuals found to have a credible fear generally are referred to immigration court, where they can apply
for asylum before an immigration judge as part of the overall removal proceeding. If an asylum ocer nds
that the migrant did not have a credible fear, an immigration judge may review the negative nding. To be
granted asylum at USCIS or the courts, asylum seekers must show that there is a reasonable possibility of
past persecution or a well-founded fear of future persecution on account of a statutorily protected ground,
a higher standard than the credible fear screening.
40
D. Post-1996 Statutory Provisions
The IIRIRA asylum provisions remain largely in place, though subsequent legislation amended other
immigration laws. The United States and Canada signed a Safe Third Country Agreement in 2000, which
went into eect in 2004 and is the only existing formal safe third country agreement that the United States
has in eect today.
41
Under the agreement, asylum seekers must request protection in the rst of the two
countries that they arrive in unless they qualify for an exception. The agreement applied only to asylum
seekers arriving at ports of entry until 2023, when it was expanded to cover the rising numbers of migrants
arriving between ports.
42
The Real ID Act of 2005 added “burden-of-proof” provisions that require an asylum seeker to show that
“race, religion, nationality, membership in a particular social group, or political opinion was or will be at
least one central reason for persecuting the applicant” to meet the denition of a refugee.
43
The law also set
forth standards for making determinations about an applicant’s credibility and the need for corroborating
evidence. The law eliminated annual caps on the number of asylees who could adjust to lawful permanent
residence.
44
38 Special procedures apply to migrants arriving in the United States from Canada in accordance with the U.S.-Canada Safe Third
Country Agreement. Otherwise, individuals who have previously been ordered removed and are taken into custody are screened
using a higher standard—reasonable possibility of persecution or torture—in reinstatement of removal proceedings, another
expedited procedure for removing migrants without a court hearing. Migrants who pass the screening may seek withholding of
removal or deferral of removal in immigration court. See Meissner, Hipsman, and Aleiniko, The U.S. Asylum System in Crisis, 2.
39 Illegal Immigration Reform and Immigrant Responsibility Act of 1996: 3009-582.
40 Bruno, Immigration: U.S. Asylum Policy, 16.
41 Chishti and Gelatt, “Roxham Road Meets a Dead End?.”
42 Chishti and Gelatt, “Roxham Road Meets a Dead End?.”
43 REAL ID Act of 2005, Public Law 109-13, U.S. Statutes at Large 119 (2005): 303.
44 Bruno, Immigration: U.S. Asylum Policy, 20.
Today, most migrants arriving
at the U.S. border turn
themselves in to ocials in
order to seek protection.
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Facing concerns that DHS was not adequately screening unaccompanied migrant children for evidence
of tracking or persecution, Congress in 2008 passed the William Wilberforce Tracking Victims Protection
Reauthorization Act (TVPRA).
45
The law made certain statutory restrictions on applying for asylum
inapplicable to unaccompanied children, such as the requirement that an individual generally apply for
asylum within one year of their last entry to the country. It also provided that a USCIS asylum ocer would
have initial jurisdiction over any asylum application led by an unaccompanied child, even if the minor was
in removal proceedings in immigration court.
46
As such, unaccompanied children may apply for asylum
armatively at USCIS, and if they are not granted asylum there, they are referred to immigration court,
where their claim will be heard by a judge. The arrival of unaccompanied children has increased dramatically
in recent years. In FY 2022, unaccompanied minor encounters reached a high of 149,000, almost double the
76,000 encountered in FY 2019.
47
E. Regulations on Asylum Eligibility and Procedures
Although U.S. asylum statutes remain largely unchanged from the 1990s, the government has issued a
number of regulations governing asylum procedures. One notable rule that was issued in 2000 and remains
in eect provides that an asylum applicant is not considered to have a well-founded fear of persecution if
they could relocate within their home country and “under all the circumstances it would be reasonable to
expect the applicant to do so.”
48
The Trump administration issued regulations
that restricted access to asylum, including rules
that barred from eligibility for asylum those
who crossed the U.S.-Mexico border without
authorization. A separate rule made ineligible for
asylum migrants who transited through a third
country and did not apply for asylum there and
have their application denied. These rules were eventually blocked by the courts.
49
The Biden administration has promulgated a number of rules relating to asylum, including one known as
the asylum ocer rule, which allows USCIS to adjudicate border asylum cases that would normally go to
immigration judges after an individual processed through expedited removal has established the requisite
level of fear of persecution.
50
By allowing asylum ocers to adjudicate the entire case rather than just the
initial credible-fear interview, the rule shortens the adjudication process to months, instead of years. First
45 Congressional Research Service (CRS), Unaccompanied Alien Children: An Overview (Washington, DC: CRS, 2021), 6.
46 Bruno, Immigration: U.S. Asylum Policy, 20.
47 William A. Kandel, Increasing Numbers of Unaccompanied Children at the Southwest Border (Washington, DC: CRS, 2023), 1.
48 The U.S. Code of Federal Regulations, 8 CFR 208.13(b)(3) provides that factors adjudicators should consider include, but are not
limited to “whether the applicant would face other serious harm in the place of relocation; ongoing civil strife in the country;
administrative, economic, or judicial infrastructure; geographic limitations; and social and cultural constraints such as age, gender,
health, and social and family ties.” See U.S. Immigration and Naturalization Service (INS), “Asylum Procedures,” Federal Register 65,
no. 235 (December 6, 2000): 76121-38.
49 Bolter, Israel, and Pierce, Four Years of Profound Change, 16-19, 80-81.
50 The rule draws in part on proposals made in an earlier MPI report: Meissner, Hipsman, and Aleiniko, The U.S. Asylum System in
Crisis.
Although U.S. asylum statutes remain
largely unchanged from the 1990s, the
government has issued a number of
regulations governing asylum procedures.
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implemented in June 2022, the rule was paused in May 2023 due to resource constraints. It was restarted in
October 2023, but the number of migrants processed through it is expected to remain low. Fewer than 6,000
migrants had gone through this revised process as of June 2023.
51
Another rule, the circumvention of lawful
pathways regulation, restricts eligibility for asylum for those crossing between ports of entry (see Border
section for more details). These regulations have been challenged in the courts but remained in eect at the
time of this writing.
F. Case Law on Asylum
In the absence of updates to U.S. immigration laws, the U.S. Supreme Court and lower-level courts have
played an outsized role in deciding the legality of government actions relating to asylum, as well as
interpreting existing laws. Decisions issued by the Supreme Court have addressed the detention of asylum
seekers; Biden administration eorts to terminate the Trump-era Migrant Protection Protocols (informally
known as the Remain in Mexico program), which forced migrants to wait for their U.S. court hearings in
Mexico;
52
and DHS’ exercise of prosecutorial discretion to prioritize certain migrants for removal and decline
to prosecute others.
The attorney general, the head of the U.S.
Department of Justice, also has the authority to
issue precedent decisions for how USCIS and the
immigration courts apply immigration law. These
attorney general referral and review decisions
have been inuenced by political forces, with
successive administrations issuing decisions
overturning past ones—leading to inconsistency
in adjudications.
53
Additionally, federal appellate
courts have issued decisions that apply only to their jurisdictions, the result being a complex patchwork
of applicable standards and considerations in asylum case law. The courts may consider the positions of
the UN High Commissioner on Refugees (UNHCR) and international treaty bodies but assess the weight of
submissions on a case-by-case basis.
The precedential decisions by the attorney general and the courts have become increasingly important
not only due to the lack of congressional action, but also as the nature of asylum claims themselves have
changed. The persecution claims long seen in the post-World War II era, which centered on state actors,
today have signicantly given way to claims of persecution by non-state actors, with Central Americans
typically seeking asylum based on gang or gender-based violence under the protected ground of “particular
social group.” During the Trump administration, Attorney General Je Sessions issued a decision known as
Matter of A-B- that largely eliminated gang and domestic violence as reasons to grant protection. Attorney
51 DHS, “Asylum Processing Rule Cohort Reports,” accessed October 27, 2023.
52 The Migrant Protection Protocols began in January 2019 and required migrants, including asylum seekers, to wait in Mexico while
their immigration cases were adjudicated. See Bolter, Israel, and Pierce, Four Years of Profound Change, 25, 34-35.
53 Sarah Pierce, Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review (Washington, DC:
MPI, 2021).
In the absence of updates to U.S.
immigration laws, the U.S. Supreme
Court and lower-level courts have played
an outsized role in deciding the legality of
government actions relating to asylum,
as well as interpreting existing laws.
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General Merrick Garland, a Biden appointee, overturned that decision in 2021.
54
The Biden administration
has also pledged to issue a rule dening particular social group, which would be an important step toward
standardizing how such groups are dened across jurisdictions and speeding decisions. The rule had not
been issued at this writing.
4 Border Management in Policy and Practice
To improve border management, the United States needs a functioning asylum system so that people
eligible for protection can receive it, and those who are ineligible can be quickly removed after fair review of
their claim. There is widespread recognition that the asylum system is being used by substantial numbers of
people without meritorious protection claims because they have no other means by which to immigrate to
the United States for work or the opportunity to join family members. In response, the Biden administration
has used its parole authority to signicantly expand lawful pathways to channel intending migrants through
safe, orderly, and humane processes so that they do not seek to enter without authorization.
55
Presently,
the arrival of record numbers of asylum seekers at the U.S.-Mexico border, the outdated legal framework for
adjudicating their claims, and resource allocations that do not prioritize adjudications mean that the asylum
system faces unprecedented strain. Since border ocials are unable to quickly remove most border arrivals,
nearly 2.5 million were released into the country to await immigration court proceedings between January
2021 and March 2023 and had no conrmed departure.
56
Against this backdrop, the Biden administration
ushered in a new era of migration management
policies in May 2023 when it lifted the Title 42 public
health authority that the Trump administration
imposed in March 2020, citing the COVID-19
pandemic. Title 42 had authorized quick expulsions
of many arriving unauthorized migrants (there were
almost 2.8 million expulsions during its 38-month
use);
57
it eectively blocked access to territorial
asylum while it was in use because migrants can only apply for asylum once they are on U.S. territory. The
post-Title 42 strategy entails oering new lawful means of entry for asylum seekers through ocial crossing
points and nationality-specic parole programs; restricting asylum eligibility and imposing consequences
for migrants crossing the border without authorization; and launching a network of Safe Mobility Oces
(SMOs) in countries in South and Central America to provide screening and information for intending
migrants closer to their home countries.
58
54 Matter of A-B-, 28 I&N December 307 (Attorney General, June 16, 2021).
55 Andrew Selee, “Regional Processing Centers: Can This Key Component of the Post-Title 42 U.S. Strategy Work?,” MPI commentary,
May 2023.
56 U.S. House Judiciary Committee Subcommittee on Immigration, Integrity, Security, and Enforcement, The Biden Border Crisis:
New Data and Testimony Show How the Biden Administration Opened the Southwest Border and Abandoned Interior Enforcement
(Washington, DC: House Judiciary Committee Subcommittee on Immigration, Integrity, Security, and Enforcement, 2023).
57 CBP, “Nationwide Encounters,” accessed November 26, 2023.
58 Selee, “Regional Processing Centers.”
To improve border management, the
United States needs a functioning
asylum system so that people eligible
for protection can receive it, and those
who are ineligible can be quickly
removed after fair review of their claim.
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Still in its nascent stages and under legal challenge from liberal and Republican-aliated groups, this new
approach aims to create order and predictability at the border by incentivizing arrivals at ports of entry
and disincentivizing irregular crossings in tandem with longer-term regional migration management
coordination across the Western Hemisphere. For example, the Los Angeles Declaration on Migration and
Protection, signed by the United States and 20 other countries, has set the framework to increase regional
cooperation.
59
These policy changes represent a paradigm shift in the U.S. response to unprecedented
new realities in irregular migration. But it remains a signicant challenge to achieve a balance between
expanding legal manners of entry and access to asylum, along with imposing additional consequences to
deter irregular migration.
There were nearly 2.8 million encounters of migrants at all U.S. borders and ports of entries, including
airports, in FY 2022. The number reached a record-breaking 3.2 million in FY 2023, though these gures
include Title 42 expulsions, which had a high rate of repeated attempts by earlier-expelled migrants (and
represent events, not individuals).
60
The United States encountered increasing numbers of families and
unaccompanied children, as well as a sharp
diversication in nationalities from beyond Mexico
and northern Central America. Together these
shifts have caused signicant strain on the U.S.
immigration enforcement system. At the Southwest
border, families and unaccompanied children
increased to 29 percent of encounters in FY 2022,
up from 21 percent in FY 2020.
61
Additionally, there
were 571,000 unauthorized arrivals of Venezuelans, Cubans, and Nicaraguans in FY 2022. These numbers
eclipsed the 521,000 arrivals of northern Central Americans, with El Salvador, Guatemala, and Honduras
previously the top countries of irregular migration after Mexico.
62
The record encounter numbers in part
represent a change that began in 2014, when migrants went from largely trying to avoid U.S. border ocials
to turning themselves in so that they could seek protection.
The rapid increase of migrants traveling through the dangerous Darien Gap between Colombia and Panama
en route to the United States illustrates the swiftly changing ows. Some 409,000 migrants had crossed
the gap during the rst nine months of 2023, surpassing the previous record of 250,000 crossings in 2022
and a far cry from 2019, when 22,000 migrants crossed.
63
While neighboring countries in Latin America
and the Caribbean harbor approximately 6.5 million Venezuelans who have ed their country since 2015,
64
pandemic-related economic losses have caused hundreds of thousands of them and other nationalities
59 The White House, “Los Angeles Declaration on Migration and Protection,” June 10, 2022.
60 “Nationwide encounters are the sum of CBP encounters across all areas of responsibility including Northern Land Border,
Southwest Land Border, Oce of Field Operations non-land border ports of entry (e.g., airports, seaports), and U.S. Border Patrol
sectors that do not share a land border with Canada or Mexico (e.g., Miami Sector).” See CBP, “Nationwide Encounters.”
61 CBP, “Nationwide Encounters.”
62 Ariel G. Ruiz Soto, “Record-Breaking Migrant Encounters at the U.S.-Mexico Border Overlook the Bigger Story,” MPI commentary,
October 2022.
63 Caitlyn Yates and Juan Pappier, “How the Treacherous Darien Gap Became a Migration Crossroads of the Americas,” Migration
Information Source, September 20, 2023; UNHCR, “Darien Panama: Mixed Movements Protection Monitoring October 2023” (fact
sheet, October 2023).
64 UNHCR, “Over 4 Million Venezuelan Refugees and Migrants Struggle to Meet Basic Needs Across the Americas” (press release,
September 12, 2023).
There were nearly 2.8 million encounters
of migrants at all U.S. borders and ports
of entries, including airports, in FY 2022.
The number reached a record-breaking
3.2 million in FY 2023.
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such as Haitians to engage in secondary migration toward the United States at the same time as some
Venezuelans and others leave directly from their countries of origin due to ongoing instability.
65
The real-
time spread of information through social media and other platforms has helped facilitate and demystify
aspects of the migration process, in addition to the professionalization (and control) of smuggling routes
wielded by criminal organizations.
66
A. Border Agencies
U.S. border management policy focuses mainly on the border with Mexico, as the vast majority of
encounters occur there as compared to the U.S.-Canada border and at sea. DHS is charged with border
management through its CBP component; another component, the U.S. Coast Guard, conducts interdictions
at sea. At land borders, CBP divisions manage dierent aspects of migrant arrivals. Ports of entry—the lawful
access points for people and cargo to reach U.S. territory—are managed by CBP’s Oce of Field Operations.
Between ports of entry, the Border Patrol apprehends migrants attempting to enter without authorization.
CBP works to quickly process migrants encountered at or between ports of entry and to hold people in its
custody for no more than 72 hours.
Another component of DHS, U.S. Immigration and Customs Enforcement (ICE), manages the longer-term
detention of migrants at facilities along the Southwest border and in the U.S. interior. ICE is also responsible
for arresting unauthorized migrants living in the U.S. interior as well as noncitizens charged with criminal
activities; it also manages removals and returns. Asylum ocers from USCIS, also a component of DHS,
conduct credible-fear screenings of migrants who are placed in expedited removal proceedings and express
a fear of return to their home country.
B. Reception Process
To the greatest extent possible, DHS places migrants arriving without authorization into expedited removal,
which allows for relatively quick removal without a court hearing.
67
During the expedited removal process,
individuals who request asylum or otherwise express a fear of persecution are entitled to a credible-fear
interview to determine whether there is a signicant possibility that they will be able to establish eligibility
for asylum or other form of protection under the Convention Against Torture in a later proceeding. If
they pass this rst step, they may be released into the U.S. interior to le an asylum application and await
removal proceedings in immigration court.
68
Those who do not seek asylum protection or who are unable
to establish a credible fear may be removed to their country of origin. Most asylum seekers pass this initial
step; before the pandemic, about 85 percent of those screened were deemed to have a credible fear.
69
65 UNHCR, “Over 4 Million Venezuelan Refugees and Migrants Struggle to Meet Basic Needs Across the Americas.”
66 Julie Turkowitz, “A Girl Loses Her Mother in the Jungle, and a Migrant Dream Dies,” The New York Times, updated June 20, 2023.
67 The time to removal depends on nationality, available ights, travel documents, and other factors.
68 DHS determines whether to release noncitizens based on factors such as security concerns. Migrants processed under the asylum
ocer rule follow a dierent adjudication process.
69 Declaration of Blas Nuñez-Neto, Assistant Homeland Security Secretary, Border and Immigration Policy, M.A. et al v. Alejandro
Mayorkas (U.S. District Court for the District of Columbia, October 2023), 8; On average, immigration judges overturn about 25
percent of asylum ocers’ negative credible-fear determinations, leading to higher fear-found rates than those initially reported.
See TRAC, Immigration Judge Decisions Overturning Asylum Ocer Findings in Credible Fear Cases (Syracuse, NY: Syracuse University,
2023).
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Resource capacity plays a major role in processing. At times of high border arrivals, DHS lacks sucient
holding capacity and personnel to place all eligible individuals into expedited removal. As a result, many
border arrivals are released into the U.S. interior with a charging document known as a notice to appear
(NTA) that schedules them for removal proceedings in immigration court. At times of exceptionally high
border arrivals, DHS has resorted to issuing NTAs with placeholder information or has released people
without NTAs but with instructions to report within a period of days or weeks to immigration enforcement
personnel inside the country for further processing. The immigration court process typically takes years;
some 2023 arrivals to New York City have been scheduled for initial hearings in 2027.
70
Humanitarian Parole
One of the most innovative and important aspects of the Biden administration’s border management
strategy has been its unprecedented use of humanitarian parole. DHS is authorized by statute to allow
inadmissible noncitizens to enter the United States temporarily via parole, which permits them to remain in
the country for a designated period. At the border, ocials have used short grants of parole, up to 60 days,
to alleviate overcrowding at border facilities during times of high encounters. From January 2021, when
Biden took oce, to June 2023, border authorities granted parole to about 718,000 individuals encountered
between ports of entry.
71
Litigation by Florida, a Republican-led state, has mostly
halted these short-term parole grants, as a lower court
judge found that ocials had exceeded their statutory
authority to release migrants rather than detain them.
The Department of Justice appealed the decision, but
pending resolution of the case, ocials are forgoing
short-term parole grants. Instead, they are issuing
NTAs, which take one to two hours per person to
process given legal requirements for proper service, versus 15 minutes to process someone using parole.
72
In addition to the signicant rise in the use of parole, DHS has dramatically changed how the authority is
operationalized. In January 2023, the department began incentivizing migrants to arrive at ocial ports
of entry by allowing them to schedule appointments at certain ports through the CBP One mobile app.
Unlike people encountered crossing irregularly, those who receive CBP One appointments generally are
granted one to two years of parole. The number of scheduled appointments has increased to 1,450 per day,
but demand continues to outstrip supply as thousands of migrants arrive at the U.S.-Mexico border per
day, limiting the incentive power of the app. Nonetheless, DHS has been able to vastly expand processing
capacity and the ports of entry can now process four to ve times as many people as before the pandemic.
73
70 See, e.g., Elliot Spagat, “Immigrants Waiting 10 Years in US Just to Get a Court Date,” Associated Press, April 26, 2023.
71 Muzaar Chishti and Kathleen Bush-Joseph, “In the Twilight Zone: Record Number of U.S. Immigrants Are in Limbo Statuses,”
Migration Information Source, August 2, 2023.
72 Justice Action Center Litigation Tracker, “Florida v. Mayorkas (FL Detention II) – District Court,” accessed November 25, 2023.
73 Comments by Blas Nuñez-Neto, Assistant Homeland Security Secretary, Border and Immigration Policy, at the Immigration Law
and Policy Conference, “State of Play: Dynamism and Disorder” panel, September 18, 2023.
One of the most innovative and
important aspects of the Biden
administration’s border management
strategy has been its unprecedented
use of humanitarian parole.
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About 140,000 migrants had made appointments through June 30, with the largest numbers coming from
Haitians, Venezuelans, and Mexicans.
74
Regardless of how migrants enter the United States, they still face removal proceedings and can be
deported unless they have a basis to seek a more permanent lawful status, such as asylum. Migrants may
choose where in the country they would like to go and notify border ocials of their intended address, if
any.
In April 2022, the governors of Texas and Arizona began busing recent border arrivals to immigrant-friendly
jurisdictions (often labeled sanctuary cities) in the U.S. interior, citing a lack of federal coordination and
the need for other states to share the costs of receiving migrants. As of October 2023, Texas had bused
more than 50,000 migrants to cities run by Democratic elected ocials.
75
This system supplemented the
pre-existing process by which nonprot organizations would help migrants arrange travel to their U.S.
destinations, with many migrants paying for their own tickets.
C. e Circumvention of Lawful Pathways Rule
The Biden administration ended or signicantly scaled back controversial border control measures imposed
during the Trump era, such as the Migrant Protection Protocols, detention of families, and border wall
construction.
76
But the administration continued to use the Title 42 border expulsions authority until May
2023 to manage ongoing high border arrivals, and a new rule includes aspects of Trump policies limiting
access to asylum.
The circumvention of lawful pathways regulation,
which went into eect in May 2023, incentivizes
people to come to ports of entry after making CBP
One appointments, and disincentivizes crossing
between ports, with the intent of creating order
and predictability. The rule declares that migrants
(not including unaccompanied minors) who come
to a port of entry without an appointment or who cross irregularly will be presumed ineligible for asylum
unless they applied for and were denied asylum in a transit country.
77
Such individuals can establish an
exception to the presumption if they came to a port of entry without an appointment but can establish
that it was impossible to use the CBP One app due to a language barrier, technical failure, illiteracy, or some
other serious obstacle. Individuals also may be able to rebut the presumption of ineligibility for asylum
by demonstrating exceptionally compelling circumstances pertaining to themselves or a traveling family
74 Chishti and Bush-Joseph, “In the Twilight Zone.”
75 Oce of the Texas Governor, “Operation Lone Star Buses Over 50,000 Migrants to Sanctuary Cities” (press release, October 6, 2023).
76 Other measures introduced by the Trump administration sought to deter migrants from crossing the Southwest border without
authorization through a “zero-tolerance” approach, including by prosecuting rst-time border crossers and asylum seekers for
illegal entry into the United States. Children were separated from their parents when this policy was applied to families, leading to
public backlash. The administration rescinded the policy and detained families together after a federal court order. See Meissner,
Hipsman, and Aleiniko, The U.S. Asylum System in Crisis, 1.
77 DHS, “Fact Sheet: Circumvention of Lawful Pathways Final Rule” (fact sheet, May 2023).
The Biden administration ended or
signicantly scaled back controversial
border control measures imposed
during the Trump era.
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member, such as a medical emergency, imminent and extreme threat to life and safety at the time of entry,
or that they are a victim of a severe form of tracking.
Migrants who cannot rebut the presumption of ineligibility may pursue a protection claim only if they
can demonstrate a “reasonable” possibility of persecution or torture—the higher screening threshold that
otherwise applies to people who are only allowed to access withholding of removal or protection under
the Convention Against Torture, which are lesser forms of relief.
78
The circumvention of lawful pathways rule
applies to people who are subject to its provisions regardless of whether they are processed through the
expedited removal process at the border or are released into the country.
But DHS’s ability to implement the new asylum rule—much like its ability to implement the earlier asylum
ocer rule—is hampered by longstanding capacity constraints both at and between lawful points of
entry. The ports of entry lack the physical space and personnel to process the current level of migrant
arrivals. Individuals with CBP One appointments are screened only for security concerns in connection
with the parole determination and quickly released into the country with two years of parole and a notice
to appear in immigration court for removal proceedings. Migrants who arrive without an appointment
may also be issued parole and an NTA, though if ICE or Border Patrol have capacity, individuals deemed
threats to national security or public safety could be placed into expedited removal. Therefore, ocials are
encouraging asylum seekers to arrive at ports of entry, but minimal processing occurs there.
79
To speed processing and increase the ability to return migrants quickly, DHS in April 2023 resumed
conducting some credible-fear determinations in Border Patrol temporary facilities along the border,
without rst transferring the migrants to ICE detention. When the Trump administration used this faster
process, just 23 percent of migrants met the credible-fear standard.
80
Initial data show that about 59 percent
of the 58,000 migrants screened from May to September, since the new asylum rule went into eect, were
deemed to have a credible fear of persecution.
81
CBP’s short-term detention capacity remains well below present needs. When migrants rushed to enter
before Title 42 ended, the Border Patrol held about 29,000 people at its soft-sided tent facilities, well above
the capacity range of 18,000 to 20,000.
82
ICE’s longer-term detention capacity was limited by pandemic-
related measures to a daily average population of about 24,000. As of November 2023, the agency
held thousands more, approximately 40,000 per day, including detainees from its interior enforcement
operations.
83
The number of credible-fear interviews conducted per day is also limited by the number of asylum ocers
available. The government planned to have 1,100 asylum ocers conduct interviews after Title 42 ended.
84
78 Those who meet this higher screening threshold under the rule are permitted to also seek asylum in immigration court.
79 Muzaar Chishti and Kathleen Bush-Joseph, “U.S. Border Asylum Policy Enters New Territory Post-Title 42,” Migration Information
Source, May 25, 2023.
80 Kate Huddleston, “Ending PACR/HARP: An Urgent Step Toward Restoring Humane Asylum Policy,” Just Security, February 16, 2021.
81 Declaration of Blas Nuñez-Neto, Assistant Homeland Security Secretary, Border and Immigration Policy, M.A. et al v. Alejandro
Mayorkas.
82 Chishti and Bush-Joseph, “U.S. Border Asylum Policy Enters New Territory Post-Title 42.”
83 TRAC Immigration, “Immigration Detention Quick Facts,” accessed November 27, 2023.
84 Chishti and Bush-Joseph, “U.S. Border Asylum Policy Enters New Territory Post-Title 42.”
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Previously, the most credible-fear interviews DHS ever conducted was 103,000 in FY 2019.
85
In FY 2023,
USCIS received a record 143,000 credible-fear interview referrals (see Figure 1).
FIGURE 1
Credible-Fear Interview Referrals to USCIS from CBP and ICE, by Fiscal Year, 1997-2023
0
20,000
40,000
60,000
80,000
100,000
120,000
140,000
160,000
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
Note: Data represent individuals.
Sources: Andorra Bruno, Immigration: U.S. Asylum Policy(Washington, DC: Congressional Research Service, 2019), 37;
U.S. Citizenship and Immigration Servies (USCIS), “Semi-Monthly Credible Fear and Reasonable Receipts and Decisions,” accessed
November 1, 2023; USCIS, “Asylum Quarterly Engagement Fiscal Year 2023, Quarter 4, Presentation, September 19, 2023,” September
19, 2023.
Litigation has also threatened the administration’s post-Title 42 border plans. The American Civil Liberties
Union (ACLU) and other immigrant-rights groups challenged the circumvention of lawful pathways rule,
contending that it marks a return to the Trump administration’s practices, especially the restrictions on
access to asylum and screenings in custody without legal counsel.
86
A federal judge found the rule unlawful,
but it remains in place during appeal proceedings, which may ultimately reach the Supreme Court.
87
85 DHS, Oce of Homeland Security Statistics, “Credible Fear Cases Completed and Referrals for Credible Fear Interview,” accessed
November 22, 2023.
86 Priscilla Alvarez, “Federal Judge Blocks Biden’s Controversial Asylum Policy in a Major Blow to Administration,” CNN, July 26, 2023.
87 Chishti and Bush-Joseph, “U.S. Border Asylum Policy Enters New Territory Post-Title 42.”
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5 Access and National Asylum Procedures
The U.S. asylum adjudication system faces greater strain than at any time in its history. With each passing
year, application lings break records as recent border arrivals seek asylum, in some cases to be able
to obtain work permits. Adjudications cannot keep up with the rapidly increasing number of incoming
cases, especially as resources are focused on border screenings to facilitate removals. In the 1990s, the
immigration service tackled backlogs by scheduling cases on a “last-in, rst-out” basis and by hiring more
adjudicators. Today, however, USCIS and the immigration courts have not received adequate funding, nor
can they hire quickly enough to deal with vastly dierent populations of asylum seekers and more complex
asylum law. Various projections suggest it could take a decade or more for the courts to become current on
their dockets, for example.
88
These delays mean that asylum seekers in need of protection do not receive
it in a timely manner and the ecacy of border management policies is undermined, since asylum seekers
cannot be removed until their applications are denied, which currently takes years. Delays also incentivize
the use of the asylum pathway by individuals who may not have a protection need.
The pandemic and related shutdowns of government services exacerbated these long-standing issues and
backlogs ballooned as a result. But the pandemic also accelerated the adoption of technology and has led
to increased eciencies, in particular at the immigration courts. The Biden administration has introduced
reforms such as the asylum ocer rule, which allows for faster, nonadversarial adjudication of asylum
applications, as well as various court management procedures. But progress has been stymied by a singular
focus on lowering border arrival numbers and the lack of congressional action.
A. e U.S. Asylum System
U.S. law provides that asylum may be granted to an asylum seeker who applies in accordance with
applicable requirements and is determined to be a refugee. The law denes a refugee as a person who
is outside their country of nationality and is unable or unwilling to return to, or avail themselves of the
protection of, that country because of persecution or a well-founded fear of persecution based on one
of ve protected grounds: race, religion, nationality, membership in a particular social group, or political
opinion.
89
Asylum applications are decided on a case-by-case basis.
As was described in the legal framework section above, the evolution of U.S. asylum law through the
issuance of regulations and court decisions has meant that cases are incredibly complex to prepare and
adjudicate. Asylum applications are led in the U.S. interior at USCIS asylum oces or EOIR, the immigration
court system, depending on whether a noncitizen is in removal proceedings. There is no fee for applying
for asylum and U.S. law states that cases are to be adjudicated within six months, though backlogs have
prevented this from happening for years.
88 Holly Straut-Eppsteiner, Immigration Judge Hiring and Projected Impact on the Immigration Courts Backlog (Washington, DC: CRS,
2023).
89 Immigration and Nationality Act, Section 101(a)(42).
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FIGURE 2
Armative Asylum Cases Filed at USCIS, by Fiscal Year, 1995-2023
0
50,000
100,000
150,000
200,000
250,000
300,000
350,000
400,000
450,000
500,000
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
Number of Applications
Notes: Data represent applications, which can cover multiple individuals, and are limited to new lings. Reopened applications are not
included.
Sources: Bruno, Immigration: U.S. Asylum Policy, 33; USCIS, “Armative Asylum Statistics FY 2019,” accessed October 2, 2023;USCIS,
“Number of Service-wide Forms Fiscal Year to Date by Quarter and Form Status Fiscal Year 2020,” accessed October 2, 2023; USCIS,
“Number of Service-wide Forms Fiscal Year to Date by Quarter and Form Status Fiscal Year 2021,” accessed October 2, 2023; USCIS,
“Number of Service-wide Forms By Quarter, Form Status, and Processing Time July 1, 2022 – September 30, 2022,” accessed November
27, 2023; USCIS, “Asylum Quarterly Engagement Fiscal Year 2023, Quarter 4, Presentation, September 19, 2023.”
Individuals already present in the United States who are not in removal proceedings in immigration court
may apply for asylum armatively with USCIS, provided they do so within one year of U.S. entry. These cases
are adjudicated by asylum ocers who either grant the application or refer certain unsuccessful applicants
to the immigration courts. Individuals whose cases are referred to the immigration courts then have their
asylum claims heard anew by an immigration judge as a defence against removal.
Noncitizens who have been apprehended and placed in removal proceedings, and whose cases are
thus already before an immigration judge, may apply for asylum defensively, as a defense against being
removed. Immigration judges hear these cases and ICE attorneys generally prosecute the government case
for removal.
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FIGURE 3
Defensive Asylum Applications Filed, Granted, and Pending at U.S. Immigration Courts, FY 2013-23
0
100,000
200,000
300,000
400,000
500,000
600,000
700,000
800,000
2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 Q3
Fiscal Year
Filed Granted Pending
Notes: Data for scal year (FY) 2023 are through the third quarter. These data represent defensive asylum applications led in removal,
exclusion, and asylum-only proceedings and are for U.S. federal government scal years, which run from October 1 to September 30.
Sources: EOIR, “Executive Oce for Immigration Review Adjudication Statistics: Defensive Asylum Applications,” accessed September
29, 2023.
Noncitizens who express a fear of return to their home country at or near the U.S. border may be placed in
expedited removal and receive a credible-fear screening by USCIS asylum ocers. The screening determines
whether a migrant has a “signicant” possibility of establishing eligibility for asylum, withholding of removal,
or protection in the United States under the Convention Against Torture. Those who pass this credible-fear
screening generally are placed in immigration removal proceedings and may apply for asylum defensively in
court.
As described above, under the asylum ocer rule that is being applied to a limited number of cases,
certain applicants who are found to have demonstrated a credible fear of persecution are referred for a
nonadversarial asylum merits interview with a USCIS asylum ocer and may be granted asylum without
ever being placed in removal proceedings. Also as described above, under the circumvention of lawful
pathways rule, noncitizens who arrive without authorization are generally deemed ineligible for asylum.
They are screened for fear of persecution under a higher standard than normal (reasonable fear) and may
only be eligible for withholding of removal or protection under the Convention Against Torture.
Children under age 18 traveling without a parent or guardian are not subject to expedited removal and
are instead processed in accordance with a special protective procedure established by the William
Wilberforce Tracking Victims Protection Reauthorization Act of 2008. Unaccompanied minors from
countries other than Mexico or Canada are placed into immigration court proceedings, but may still apply
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for asylum armatively at USCIS, which retains jurisdiction of their applications while they are deemed
unaccompanied. Unaccompanied children from Mexico and Canada who are determined not to have been
a victim of tracking or have a fear of persecution in their home country and have the capacity to make an
independent decision to withdraw their application for U.S. admission may be quickly returned.
Asylum applicants who are not otherwise eligible to work in the United States can be granted a work permit
180 days after ling their asylum application and are generally ineligible to receive federal public benets.
A migrant who has been granted asylum (an “asylee”) may work indenitely and receive approval to travel
abroad. An asylum grant does not expire, but it may be terminated under certain circumstances, such as
if the asylee is determined to no longer meet the legal denition of a refugee. After one year as an asylee,
an individual can apply to become a U.S. lawful permanent resident (refugees are required to apply for
such status within a year of U.S. entry). Asylees and admitted refugees may petition for their spouse and/or
unmarried children who are under age 21 to join them in the United States. Recipients of withholding and
CAT protection may not petition for their family members.
B. Armative Asylum Application Process
At USCIS, migrants apply for asylum by ling a form online or by mail with supporting evidence, which may
include written adavits, country conditions evidence, and police or medical records from the country of
origin. Applications can include spouses and minor children as derivative applicants.
90
Asylum applicants
must be interviewed by asylum ocers in a “nonadversarial” manner.
91
During the pandemic, USCIS
provided interpretation by phone, but as of September 2023, applicants must again provide their own in-
person interpreter. USCIS policy is to schedule interviews on a “last-in, rst-out” basis, to try to reduce the
incentive to le an asylum application just to receive work authorization while the case is pending. Due to
resource constraints discussed below, this scheduling policy has been ineective recently, though it helped
with backlog reduction in the 1990s.
Supervisors review asylum ocers’ decisions on asylum applications and may refer them for additional
review.
92
If asylum is granted, USCIS issues the individual a letter and form documenting the grant. If the
asylum ocer determines that an applicant is not eligible for asylum or is not granted asylum based on
discretion and the individual appears to be removable, USCIS refers the case to the immigration courts
where the asylum application is assessed again during removal proceedings.
93
Asylum ocers approved
about 28 percent of asylum cases in FY 2020, though it is important to note that the immigration courts
grant a high percentage of cases that USCIS does not approve.
94
In FY 2021, immigration judges granted
two-thirds of cases that USCIS had referred.
95
90 Dependants can also le their own applications as principals (as some may have independent bases for their claims to asylum).
91 Applicants may opt to waive their interview. This option has been oered to and exercised by applicants seeking a status called
cancellation of removal, which requires being placed in removal proceedings. See Meissner, Hipsman, and Aleiniko, The U.S.
Asylum System in Crisis.
92 Bruno, Immigration: U.S. Asylum Policy, 4.
93 Bruno, Immigration: U.S. Asylum Policy, 4.
94 Human Rights First, “USCIS Records Reveal Systemic Disparities in Asylum Decisions” (fact sheet, May 2022).
95 Human Rights First, “USCIS Records Reveal Systemic Disparities in Asylum Decisions.”
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There are 11 asylum oces around the country and as of September 2023, USCIS had 760 asylum ocers,
with authorization to reach a total of 1,028.
96
In FY 2023, more than 431,000 armative asylum applications
were led at USCIS.
97
Given the fact that asylum ocers adjudicated about 50,000 cases that year, the
backlogs are only going to continue growing. As of September 19, 2023, there were more than 1 million
pending armative asylum cases, a record.
98
Asylum ocers must also handle asylum merits interviews for cases processed pursuant to the 2022 asylum
ocer rule, although few cases are being processed in that manner.
99
Asylum ocers must also handle
credible-fear screenings at the border, which are conducted remotely with ocers calling into CBP and ICE
facilities. Credible fear-receipts have reached unprecedented highs, with USCIS receiving 143,000 referrals in
FY 2023.
100
Indeed, the Biden administration’s focus on the border has
meant that asylum ocers have been redirected to conducting
credible-fear interviews for recent arrivals, instead of asylum
interviews for those with long-pending applications. Asylum
interviews were cancelled in May 2023 as the government prepared for an inux of migrant arrivals with the
end of the Title 42 expulsions policy. Given the competing demands for asylum ocer time and resources,
applicants can wait years for an asylum interview. Congress mandated deadlines for the adjudication of
Afghan asylum cases after the emergency evacuation from Kabul in fall 2021, but USCIS has not met those
deadlines and immigrant-rights advocates brought a lawsuit to try to speed adjudications.
101
Funding for asylum processes has been insucient in recent years. USCIS is largely a fee-funded agency
(unlike most agencies in the federal government), with fees from nonhumanitarian applications supporting
the work of the humanitarian section, including for asylum adjudications. In the early 1990s, when the U.S.
government decided to not require a fee for asylum applications, humanitarian case work represented a
much smaller percentage of the caseload. Today, that portfolio has ballooned, and the humanitarian parole
programs are also free for applicants. In FY 2022, Congress appropriated $250 million to tackle the asylum
backlog, but the mismatch between incoming cases and funding means that the pending caseload has
continued to grow. In 2023, USCIS proposed funding asylum adjudications by levying a $600 surcharge on
the more than 700,000 employment-based visa petitioners and beneciaries who apply each year.
102
That
proposal is part of a fee rule expected to be nalized within the next year.
96 USCIS, “Asylum Quarterly Engagement Fiscal Year 2023, Quarter 4, Talking Points from September 19, 2023” (September 19, 2023).
97 USCIS, “Asylum Quarterly Engagement Fiscal Year 2023, Quarter 4, Presentation, September 19, 2023.”
98 Comments made by a government ocial during USCIS Asylum Quarterly Engagement, Fiscal Year (FY) 2023 Quarter 4 conference
call with nongovernmental representatives, September 19, 2023.
99 As of June 2023, about 6,000 cases had been screened under the asylum ocer rule. See DHS, “Asylum Processing Rule Cohort
Reports,” accessed October 27, 2023.
100 USCIS, “Asylum Quarterly Engagement Fiscal Year 2023, Quarter 4, Presentation, September 19, 2023.”
101 National Immigrant Justice Center, “Ahmed Et Al. V. DHS Et Al,” September 11, 2023.
102 American Immigration Council (AIC), Beyond a Border Solution: How to Build a Humanitarian System that Won’t Break (Washington,
DC: AIC, May 2023), 22.
Funding for asylum processes
has been insucient.
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C. Defensive Asylum Application Process and Appeals
An asylum seeker applies in the immigration courts by ling an application form online or on paper. Asylum
is a defense to removal, and proceedings in the courts are adversarial, with an ICE attorney generally
prosecuting the case for removal. The migrant or their representative may present evidence and call
witnesses. If the asylum application was referred from USCIS, the applicant may supplement the evidence
led. The immigration courts provide interpreters for court proceedings. An immigration judge decides
whether to grant asylum or other form of relief, or orders the noncitizen removed.
During the proceedings, an ICE attorney can agree to exercise prosecutorial discretion and stipulate to
a grant of asylum or other relief, or to particular aspects of the case. Prosecutorial discretion is used for
reasons including the ecient allocation of limited resources and the sitting administration’s priorities
for removal. Similarly, immigration judges can decide to administratively close or terminate a case if they
determine that a case is not ripe for adjudication—for example, because an unaccompanied child has a
pending asylum application at USCIS that must be decided before a judge can order the child removed, or
because ICE has agreed to exercise prosecutorial discretion in the case.
The exercise of prosecutorial discretion, termination of cases, and appeal rates mean that it is dicult to
determine grant rates for relief from removal, especially since an individual’s asylum application may not
be adjudicated or even led with the immigration courts before a case is closed. As of the third quarter of
FY 2023, the immigration courts had granted 24,000 asylum applications, a rate of 15 percent; an additional
110,000 cases were not adjudicated or were administratively closed, among other options.
103
Within 30 days of an immigration judge’s decision, the individual or ICE may appeal to the Board of
Immigration Appeals, which is also housed within the Justice Department. The board generally does not
require parties to appear, instead conducting paper reviews of cases. If the board arms a removal order,
the individual has 30 days to le a petition for review at a federal court of appeal, though there is no
automatic stay of removal during the pendency of such an appeal absent a court-issued stay.
104
Finally, a
case may be appealed to the Supreme Court, which has discretion to decide whether to hear such a request.
There are about 70 immigration courts nationwide and 660 immigration judges.
105
The Board of Immigration
Appeals has 23 judges.
106
The immigration courts had 2.16 million removal cases pending as of July 2023,
of which 851,000 were asylum cases, a number that is expected to rise as recent border arrivals le asylum
applications.
107
As of July 2023, the Board of Immigration Appeals had 107,000 pending cases.
108
In FY 2020,
more than one in ve immigration court decisions were appealed to the Board of Immigration Appeals.
109
The enormous number of cases pending means that asylum seekers wait an average of four years for
103 EOIR, “Asylum Decision Rates” (fact sheet, July 2023).
104 Holly Straut-Eppsteiner, U.S. Immigration Courts and the Pending Cases Backlog (Washington, DC: CRS, 2022), 11.
105 EOIR, “Immigration Court List – Administrative Control,” updated October 30, 2023; EOIR, “Immigration Judge (IJ) Hiring,” July 2023.
106 EOIR, “Board of Immigration Appeals,” updated September 7, 2023.
107 EOIR, “Executive Oce for Immigration Review Adjudication Statistics: Pending Cases, New Cases, and Total Completions” (fact
sheet, July 2023); EOIR, “Total Asylum Applications” (fact sheet, July 2023).
108 EOIR, “Case Appeals Filed, Completed and Pending” (fact sheet, July 2023).
109 Muzaar Chishti et al., At the Breaking Point: Rethinking the U.S. Immigration Court System (Washington, DC: MPI, 2023).
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their asylum merits hearing to be scheduled, and it can take years after that to reach a nal decision given
possible appeals.
FIGURE 4
Removal Proceeding Process for Asylum Cases in Immigration Court and Appeals
Notice to
appear
(NTA) issued
by DHS
agency: CBP,
ICE, or
USCIS
NTA filed at
EOIR.
Removal
proceedings
begin
Master
calendar
hearing(s) &
individual/
merits
hearing (in
some cases)
Immigration
judge issues
decision
ordering
removal or
granting
relief
Appeal to
Board of
Immigration
Appeals
Appeal to
Circuit Court
of Appeals
If sought by the migrant
Source: Adapted from Muzaar Chishti et al., At the Breaking Point: Rethinking the U.S. Immigration Court System (Washington, DC:
MPI, 2023), based on Hillel R. Smith, “Formal Removal Proceedings: An Introduction” (In Focus Brief, Congressional Research Service,
Washington, DC, June 2021).
During the pandemic, the immigration courts rapidly expanded the use of video teleconference and
internet-based hearings so that proceedings could continue remotely, with parties being able to appear
from dierent locations. Ocials have indicated that this has made the courts more ecient, though
due process concerns remain, particularly for vulnerable groups such as children.
110
In FY 2022, 324,000
hearings were conducted by video teleconference and 339,000 via internet platform, up from 252,000
video teleconference and 75 internet-based hearings in 2019.
111
In combination with docket management
strategies, these measures allowed judges to complete an estimated half a million cases in FY 2023— more
cases than ever before.
EOIR’s budget has grown to $860 million, up from $188 million in 2003. This funding has not kept pace with
the inux of new cases being led by DHS’ enforcement components, which have received vast infusions of
new resources over the past two decades.
112
D. Standards for Granting Asylum and Limitations on Access
U.S. laws provide limitations on the ability to apply for asylum and the ability to be granted asylum.
Limitations on Applying for Asylum
Bars to applying for asylum include: not meeting the deadline to apply within one year of U.S. entry,
previous denial of asylum in the United States, and when an individual may be removed pursuant to a safe
third country agreement to a country where they would have “access to a full and fair procedure” for seeking
110 American Immigration Lawyers Association, “Use of Video Teleconferences During Immigration Hearings,” May 5, 2022.
111 EOIR, “Hearings Adjournments by Medium and Fiscal Year” (fact sheet, July 2023).
112 DOJ, “Summary of Budget Authority by Appropriation, 2003-2005,” data tables, March 2004; EOIR, “FY 2024 Budget Request at a
Glance” (fact sheet, March 2023).
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asylum.
113
The United States and Canada maintain a Safe Third Country Agreement that was recently upheld
by the Supreme Court of Canada.
114
Limitations on Grants of Asylum
A migrant who may otherwise be eligible for asylum could still be barred if: they persecuted others, have
been convicted of a particularly serious crime, there are “serious” reasons to believe that the individual
committed a serious nonpolitical crime outside the United States, there are “reasonable grounds for
regarding the alien as a danger to the security of the United States,” an applicant is subject to certain
terrorism-related grounds of removability, or the individual was rmly resettled in another country prior to
U.S. arrival.
115
If the U.S. government presents evidence that a bar applies, the applicant must prove that it is
more likely than not that the bar does not apply.
116
U.S. law provides that the government may impose additional limitations and conditions under which
an asylum seeker shall be ineligible for asylum, and both the Trump and Biden administrations cited this
provision when promulgating regulations limiting access to asylum. Federal court orders blocked the Trump
rules; court challenges to the Biden administration’s circumvention of lawful pathways rule, among others,
are ongoing.
117
E. Withholding of Removal and Protection Under the Convention
Against Torture
Individuals barred from applying for or being granted asylum may seek protection in the form of
withholding of removal, or under the Convention Against Torture. When ling for asylum, an applicant
checks a box on the application form indicating that they also seek to be considered for subsidiary forms
of protection: withholding of removal and Convention Against Torture protection. These statuses can be
granted if the individual is found ineligible for or is deemed undeserving of a discretionary grant of asylum;
USCIS has no authority to adjudicate such claims. Immigration judges decide whether to grant withholding
or Convention Against Torture protection during removal proceedings, either after an applicant has been
referred from USCIS following an armative asylum interview or asylum merits interview conducted
pursuant to the asylum ocer rule, or if the noncitizen applied defensively in the immigration courts.
Withholding requires showing that it is “more likely than not” that the applicant will be persecuted because
of one of the ve protected grounds, which is a higher burden of proof than the well-founded fear standard
for asylum. There are also statutory bars to the grant of withholding, and some overlap with the asylum bars,
including a conviction for a particularly serious crime.
113 Hillel R. Smith, An Overview of the Statutory Bars to Asylum: Limitations on Granting Asylum (Part One) (Washington, DC: CRS, 2022),
3.
114 Honorable Sean Fraser, Minister of Immigration, Refugees, and Citizenship, “Statement from Minister Fraser Concerning the
Supreme Court’s Decision on the Safe Third Country Agreement” (news release, Government of Canada, June 16, 2023).
115 Hillel R. Smith, An Overview of the Statutory Bars to Asylum: Limitations on Granting Asylum (Part Two) (Washington, DC: CRS, 2022),
1-5.
116 Smith, An Overview of the Statutory Bars to Asylum: Limitations on Granting Asylum (Part Two), 1.
117 Bolter, Israel, and Pierce,Four Years of Profound Change.
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An individual ineligible for asylum may also seek protection under the Convention Against Torture—deferral
of removal. The applicant must show that it is “more likely than not” that they will be tortured by a public
ocial or other person acting with the consent or acquiescence of an ocial. The applicant need not show
that the torture would be based on one of the ve protected grounds for asylum or withholding.
Withholding and Convention Against Torture protection are mandatory forms of relief and may not be
denied as a matter of discretion, unlike asylum (as was mentioned above, U.S. law varies from international
law in that ocials may deny asylum even for those who are found eligible). But these protections do
not provide a path to lawful permanent residence, and only prevent return to the country where the
noncitizen fears persecution or torture. U.S. ocials could remove a grantee to a third country.
118
In FY 2023,
the immigration courts granted withholding to about 1,100 individuals and Convention Against Torture
protection to about 200 noncitizens, though as with asylum cases, the exercise of prosecutorial discretion
and administrative closure or termination of cases may mean that other eligible individuals’ claims were not
adjudicated.
119
Individuals who are granted withholding or protection under the Convention Against Torture
are authorized by regulation to request work permits.
F. Other Protections for Unauthorized Migrants Already in the United
States
In addition to asylum, withholding, and Convention Against Torture protection, U.S. immigration laws
provide the executive branch the authority to grant temporary forms of protection for certain noncitizens
already in the United States without authorization, as well as temporary lawful entrance into the country
(see Extraterritorial Access to Asylum section below). The Biden administration’s embrace of these
protections has resulted in a growing number of individuals who hold such temporary statuses; as of
November 2023, there were about 2 million such migrants, including many who were already living in the
United States without authorization.
120
These liminal (or “twilight”) immigration statuses do not confer a
path to legal permanent residence, but temporarily shield recipients from deportation for at least one year,
and in many cases, oer permission to work legally.
Temporary Protected Status and Deferred Enforced Departure
U.S. immigration laws grant the Homeland Security Secretary the authority to designate certain countries—
or parts of countries—for Temporary Protected Status (TPS). Noncitizens who are nationals of a designated
country—or stateless individuals who last habitually resided in a designated country—may be granted TPS
depending upon when they arrived in the United States. TPS provides relief from deportation for up to 18
months at a time and eligibility to apply for work authorization. TPS can be oered to nationals of countries
facing conditions that prevent their safe return, including natural disaster or war.
118 Smith, An Overview of the Statutory Bars to Asylum: Limitations on Granting Asylum (Part One), 2.
119 EOIR, “FY 2023 Third Quarter Decision Outcomes” (fact sheet, July 2023).
120 It is likely that some of these individuals have switched between temporary statuses or been able to obtain a more permanent
status, such as asylum. Updated from author’s calculations in Chishti and Bush-Joseph, “In the Twilight Zone.”
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The TPS authority was rst enacted in 1990 and every administration—Democratic and Republican alike—
has granted and/or extended TPS designations. In total, 28 countries have at some point been designated
for TPS. Hundreds of thousands of individuals from countries such as El Salvador, Somalia, and Nicaragua
have had TPS for more than 20 years and a small number of Somali individuals have had TPS for more than
30 years.
121
Approximately 611,000 immigrants held TPS as of March 2023, but hundreds of thousands
more were eligible to apply as a result of recent redesignations for Afghanistan, Cameroon, South Sudan,
Sudan, Ukraine and Venezuela, which allow individuals who arrived after the cuto date for the previous
designation to apply.
122
Under the Biden administration, new TPS designations have been issued for six countries (Afghanistan,
Cameroon, Ethiopia, Myanmar [also known as Burma], Ukraine, and Venezuela), and extended for ten
others (El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen).
The government has also granted or extended a similar protection, Deferred Enforced Departure (DED), for
certain people from Hong Kong and Liberia, with an estimated 3,900 and 2,800 covered respectively. USCIS
and the immigration courts can adjudicate TPS applications. Processing delays have signicantly aected
the issuance of TPS and associated work authorization, with wait times stretching to 20 months for USCIS to
process an application for a Venezuelan national, a longer period than the status itself.
123
Deferred Action
Deferred action is another form of protection used to defer the removal of certain unauthorized migrants
already in the United States. It is based on the executive branch’s prosecutorial discretion authority and
is granted by DHS. Among the most well-known deferred action initiatives is the Deferred Action for
Childhood Arrivals (DACA) program, which was established in 2012. DACA was created to protect from
deportation certain young adults who were brought to the United States as children and to provide them
with work authorization for temporary, renewable periods. DACA has been the subject of litigation that
has resulted in court orders keeping the program alive amid eorts by the Trump administration and
Republican-led states to terminate it but blocking new applications. Approximately 800,000 people have
benetted from the program over its lifetime, and 579,000 were registered as of March 2023.
124
The government has granted deferred action to tens of thousands of other unauthorized immigrants, also
protecting them from removal and allowing them to apply for work permits. As of August 2023, nearly
78,000 witnesses or victims of crimes with a U visa application that the government has deemed bona de
had received deferred action for four years, along with about 80,000 abused, abandoned, or neglected
youth granted Special Immigrant Juvenile status (SIJS).
125
These programs address the waits migrants
face due to annual numerical caps set by Congress—resulting visa backlogs can prevent migrants from
obtaining lawful permanent residence for years.
126
121 Jill H. Wilson,Temporary Protected Status and Deferred Enforced Departure(Washington, DC: CRS, 2023).
122 Chishti and Bush-Joseph, “In the Twilight Zone.”
123 Chishti and Bush-Joseph, “In the Twilight Zone.”
124 USCIS, “Count of Active DACA Recipients,” various dates.
125 Chishti and Bush-Joseph, “In the Twilight Zone.”
126 Chishti and Bush-Joseph, “In the Twilight Zone.”
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G. Legal Representation
The lack of legal representation is a critical issue plaguing the U.S. asylum system and other forms of
protection. Immigration proceedings are civil in nature and most noncitizens in are not entitled to
government-provided legal counsel, as defendants in criminal proceedings are. Nonetheless, migrants can
face life-threatening circumstances upon being ordered removed. Repeatedly, studies have found that
representation in immigration proceedings improves due process and fair outcomes.
127
Representation
also increases eciency as migrants with counsel move more
quickly through immigration court. Lawyers, accredited
representatives, immigration help desks, and legal orientation
programs aid some noncitizens. However, many migrants are
unable to obtain or aord counsel. The lack of access to counsel
and case management assistance means that many eligible
migrants do not apply for the various forms of protection and/
or work permits.
128
Legislation eectively barred federal funding for representation of individuals in removal proceedings,
though at state and local levels, public funding has increased the availability of representation for some.
Nonprot legal services organizations and pro bono law rm resources provide representation to some
migrants. Yet given the scale of the need, representation remains fragmented and insucient.
129
Signicant disparities between outcomes for represented and unrepresented respondents demonstrate the
need for increased access to legal representation. Of noncitizens who were granted relief in immigration
court cases started between FY 2011 and FY 2019, 92.8 percent were represented, and 7.1 percent were not.
Of those who were ordered removed during the same timeframe, 18.8 percent were represented and 81.1
percent were not.
130
Since FY 2018, the proportion of respondents who were represented at some point
in the immigration court process has generally decreased.
131
As of July 2023, 43 percent of respondents
in pending removal proceedings were represented.
132
Data on the rate of representation at USCIS are not
available.
Increasingly, experts recognize the ability of non-lawyer legal service providers to increase access to justice,
and the Biden administration has taken measures to increase the number of accredited representatives
available to assist individuals in proceedings. Accredited representatives are non-lawyers authorized
by EOIR’s Oce of Legal Access Programs to represent noncitizens who are unable to aord a lawyer in
deportation proceedings and other immigration matters. However, more eorts will be needed to expand
127 Studies from 2015 and 2018 found that legal representation led to more eciency in immigration proceedings. Migrants with
representation sought fewer unmeritorious claims, had a greater chance of being released from detention, and were more likely to
appear at hearings following release. See Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration
Court,” University of Pennsylvania Law Review 164, no. 1 (2015): 59–75; Emily Ryo, “Representing Immigrants: The Role of Lawyers in
Immigration Bond Hearings,” Law and Society Review 52, no. 2 (2018): 503–31.
128 Chishti et al., Rethinking the U.S. Immigration Court System, 2-3.
129 Chishti et al., Rethinking the U.S. Immigration Court System, 3.
130 TRAC Immigration, “Details on Deportation Proceedings in Immigration Court,” accessed June 14, 2023.
131 EOIR, “Current Representation Rates” (fact sheet, July 2023).
132 EOIR, “Current Representation Rates.”
The lack of legal representation
is a critical issue plaguing the
U.S. asylum system and other
forms of protection.
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access to legal representation, including through the expanded use of technology and public-private
partnerships.
6 Extraterritorial Access to Asylum
Extraterritorial access to protection in the United States has historically come primarily through
humanitarian parole and the refugee resettlement program. Under the Biden administration, DHS and the
State Department have launched innovative programs to increase access to protection closer to home,
targeting groups from Latin America and the Caribbean that are likely to attempt the often-dangerous
journey to the United States. For the rst time, migration to the United States is truly hemispheric in nature
and the U.S. government is reinforcing commitments made in support of the Los Angeles Declaration on
Migration and Protection with other governments in the region. To this end, the United States has expanded
labor migration options for Central Americans in the few ways possible without congressional action, with
seasonal agricultural and nonagricultural employment visas increasing from 275,000 in 2020 to more than
422,000 in 2022.
133
The largest expansion of options for entry has come through various sponsorship-based parole initiatives.
These programs allow U.S citizens and lawful permanent residents to request entry for certain migrants,
provided they sponsor them nancially; these have resulted in the arrival of hundreds of thousands of
individuals. Newly established Safe Mobility Oces in Colombia, Costa Rica, Ecuador, and Guatemala, with
future ones planned in other parts of Latin America, are also part of the strategy to reach migrants in their
countries of origin to screen them for protection, employment, and other pathways to the United States,
Canada, and Spain, though the initiative remains in the early stages.
134
A. Refugee Resettlement Program and Humanitarian Parole Authority
The United States does not conduct pre-screening for asylum outside the country, but the Immigration and
Nationality Act allows the government to grant parole to migrants facing urgent humanitarian concerns
or for signicant U.S. public benet. Parole provides lawful entrance to the United States and eligibility to
request work authorization. Before the establishment of a formal refugee resettlement system in the 1980s,
the government granted parole to large numbers of people eeing conict or persecution, including to
30,000 Hungarians in the 1950s, 15,000 Chinese in the 1960s, and more than 120,000 Vietnamese in the
1970s.
135
Congress passed the Refugee Act in 1980 partly in response to those situations, recognizing the growing
need for a more routinized process to provide protection to refugees and other displaced people,
particularly those eeing communism. Since 1980, the United States has admitted more than 3 million
133 Andrew Selee, “The Border Crisis That Wasn’t: Washington Has Found a Formula for Managing Migration—and Now Must Build on
It,” Foreign Aairs, August 9, 2023.
134 DHS, “U.S. Government Announces Sweeping New Actions to Manage Regional Migration” (fact sheet, April 2023).
135 Chishti and Bush-Joseph, “In the Twilight Zone.”
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refugees.
136
Under U.S. law, the president sets an annual cap on the number of refugees who may be
admitted following a required consultation with Congress. The Biden administration set a cap of 125,000
refugees for FY 2023, but admitted just 60,000, partly due to Trump-era actions that dramatically reduced
resettlement capacity.
137
Under the Trump administration, just 11,411 refugees were admitted in FY 2021—
the lowest level in the resettlement program’s four decades.
138
The Western Hemisphere has not historically been a priority region for refugee processing and the Biden
administration announced plans in 2023 to double the number of refugees admitted from the region, up to
40,000, in conjunction with its other eorts to manage migration in the region, including the Safe Mobility
Oces.
139
The FY 2024 refugee resettlement allocation included a further increase to 50,000 slots for
refugees from the hemisphere.
140
The administration has undertaken eorts to rebuild and modernize the refugee resettlement system
that have resulted in higher admissions and much faster processing than before. USCIS and the State
Department’s Bureau of Population, Refugees, and Migration (PRM) work together to adjudicate refugee
applications, which are now processed online. PRM typically arranges for U.S. embassy contractors and
nonprot or international organizations such as the United Nations High Commissioner for Refugees
(UNHCR) to refer applicants and manage resettlement support centers that assist in refugee processing.
141
An important dierence between asylum and refugee processing is that refugee applicants do not face the
same evidentiary requirements. Asylum seekers are expected to produce “corroborating evidence,” while
the refugee process relies on the screening and referrals done by support centers to identify potential
applicants, which takes place before interviews with USCIS refugee ocers.
142
Another important advance in U.S. refugee admissions has been the introduction and expansion of
concurrent processing, which is now taking place at sites in 14 countries. With concurrent processing, steps
such as application review and medical evaluations, which would normally be done consecutively, are done
at the same time. This has sped up processing times to as short as three months in some cases, down from a
year or more.
In 2023, the Biden administration launched the Welcome Corps initiative, which is modeled after Canadian
refugee sponsorship programs and allows groups to sponsor refugees if they raise $2,425 per refugee, pass
background checks, and submit an assistance plan.
143
The sponsors agree to take on the role of traditional
136 State Department, “The Presidential Determination on Refugee Admissions for Fiscal Year 2024” (press release, September 29,
2023).
137 Comments made by government ocial during USCIS and State Department Quarterly Refugee Processing Engagement
conference call with nongovernmental representatives, September 20, 2023.
138 Camilo Montoya-Galvez, “U.S. Aims to Resettle up to 50,000 Refugees from Latin America in 2024 under Biden Plan,” CBS News,
September 20, 2021.
139 Montoya-Galvez, “U.S. Aims to Resettle up to 50,000 Refugees from Latin America.”
140 Montoya-Galvez, “U.S. Aims to Resettle up to 50,000 Refugees from Latin America.”
141 Name redacted, Refugee Admissions and Resettlement Policy (Washington, DC: CRS, 2018).
142 The REAL ID Act of 2005 established a requirement for corroborating evidence that applies to asylum seekers’ interviews at USCIS
asylum oces and in immigration court. Regardless of whether an asylum seeker testies credibly, “an adjudicator may deny
the application simply because the applicant did not supply sucient corroboration.” See Philip G. Schrag, Jaya Ramji-Nogales,
and Andrew I. Schoenholtz, “The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem,”
forthcoming, Howard Law Journal 66, no. 3, (2023), Temple University Legal Studies Research Paper No. 2022-25, 43-44.
143 State Department, “Fact Sheet—Launch of Welcome Corps-Private Sponsorship of Refugees” (fact sheet, January 2023).
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resettlement agencies for at least 90 days after a refugee arrives and help with accessing housing, food,
medical services, education, and public benets. The initiative is beginning with refugees already in the
pipeline, but there are plans to allow sponsors to identify individuals. The State Department aimed to recruit
10,000 private sponsors to resettle 5,000 refugees in the rst year of the program.
144
USCIS hired and trained many new refugee ocers in FY 2023 and there were 370 refugee ocers as of
September 2023.
145
Despite these improvements, a backlog remains. Some 50,000 refugee applications
led before 2018 were pending as of September 2023.
146
While complementary pathways for admission
have been considered alongside resettlement, labor and education visas available in the United States are
not suited for many refugees due to barriers such as the requirement for applicants to prove they intend
to return to their home country and limited access to permanent residency.
147
Instead, the government has
allowed for the admission of refugees who qualify for education and work opportunities under the Welcome
Corps program, in the resettlement stream.
Although the refugee resettlement system has improved since reaching a resettlement low in FY 2021,
the Biden administration has turned to humanitarian parole to much more quickly process the entry of
people who might otherwise be admitted as refugees and/or face an urgent need for protection, such as
some Afghans and Ukrainians eeing war.
148
Additionally, DHS has used parole to reduce the number of
unauthorized crossings and increase order, with it serving as an alternative for some migrants. As such, the
government’s use of parole under the Biden administration has vastly outstripped past practice.
149
B. Parole Programs for Certain Nationalities
New nationality-based parole programs have resulted in hundreds of thousands of migrants entering the
United States legally via ights. These processes began in October 2022 for Venezuelans and in January
2023 for Cubans, Haitians, and Nicaraguans.
150
All four of these countries are experiencing severe political or
economic turmoil and the U.S. government has been
sharply constrained in its ability to remove nationals
to these countries. In April 2023, a limited number of
removals to Cuba resumed for the rst time since 2020,
and in October 2023 a limited number of removals to
Venezuela also resumed. Removals to Haiti have taken
place haltingly, given conditions on the ground in that
country, but remain relatively low.
144 Camilo Montoya-Galvez, “U.S. Launches Pilot Program to Allow Private Sponsorship of Refugees from around the World,” CBS News,
January 19, 2023.
145 Comments made by government ocial during USCIS and State Department Quarterly Refugee Processing Engagement,
September 20, 2023.
146 Comments made by government ocial during USCIS and State Department Quarterly Refugee Processing Engagement,
September 20, 2023.
147 Susan Fratzke et al., Refugee Resettlement and Complementary Pathways: Opportunities for Growth (Geneva and Brussels: UNHCR
and Migration Policy Institute Europe, 2021).
148 Chishti and Bush-Joseph, “In the Twilight Zone.”
149 Chishti and Bush-Joseph, “In the Twilight Zone.”
150 DHS, “Data From First Six Months of Parole Processes for Cubans, Haitians, Nicaraguans, and Venezuelans Shows That Lawful
Pathways Work” (fact sheet, DHS, July 25, 2023).
New nationality-based parole
programs have resulted in hundreds
of thousands of migrants entering
the United States legally via ights.
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Under these parole processes for the four nationalities (known as the CHNV program), more than 168,000
people had been vetted and approved for travel to the United States as of mid-July.
151
Migrants who
cross the U.S.-Mexico border without authorization are generally barred from the program, which allows
the entry of up to 30,000 of the four nationalities collectively each month. An equivalent number found to
have crossed the border without authorization may be expelled to Mexico, which has initially resulted in
decreases of encounters with the program nationalities at the U.S.-Mexico border, except for Venezuelans
who reportedly lack the required sponsors and valid passports.
After the withdrawal of the U.S. military from Afghanistan and fall of Kabul to the Taliban, Operation Allies
Welcome evacuated and paroled in 76,200 Afghans from August 2021 to September 2022.
152
The U.S.
government also paroled in more than 141,000 Ukrainians from April 2022 to July 2023 through Uniting for
Ukraine, which was set up to receive individuals who ed Russia’s invasion in February 2022.
153
Migrants arriving through these programs typically receive two years of parole and can apply for work
permits, but they must seek another avenue to become lawful permanent residents. DHS has discretion to
extend parole repeatedly, and USCIS has allowed Afghans and Ukrainians to temporarily extend their parole,
but extensions have not been announced for other nationalities.
154
While the above parole programs do not provide a direct path to lawful permanent residence, the
administration has restarted family reunication programs for certain migrants from Cuba and Haiti who are
the beneciaries of approved family-based immigrant visa petitions but who would otherwise be forced to
wait abroad for a visa to become immediately available. The Biden administration has also recently created
new family reunication programs modeled on these earlier ones for certain nationals from Colombia,
Ecuador, El Salvador, Guatemala, and Honduras. The programs will allow more than 70,000 people to
be considered for parole, letting them enter and remain in the United States while their application is
processed.
155
The family reunication programs grant three years of parole while applicants await processing
of their application for lawful permanent residence.
156
In October 2023, the administration announced the
Ecuador program shortly before the country agreed to open Safe Mobility Oces, suggesting a quid pro quo
arrangement.
157
151 Camilo Montoya-Galvez, “U.S. Has Welcomed More than 500,000 Migrants as Part of Historic Expansion of Legal Immigration
Under Biden,” CBS News, July 18, 2023.
152 Montoya-Galvez, “U.S. Has Welcomed More than 500,000 Migrants.”
153 Montoya-Galvez, “U.S. Has Welcomed More than 500,000 Migrants.”
154 Chishti and Bush-Joseph, “In the Twilight Zone.”
155 DHS, “DHS Announces Family Reunication Parole Processes for Colombia, El Salvador, Guatemala, and Honduras” (press release,
July 7, 2023).
156 Several other smaller programs have also provided parole for certain groups, including the Central American Minors program, an
initiative for veterans who were previously deported, and an initiative to reunite separated families. Noncitizens can also request
that DHS grant them parole or deferred action on an individual basis.
157 “As part of ongoing negotiations over the establishment of Safe Mobility Oces (SMOs) in Ecuador, the Government of Ecuador
has repeatedly emphasized the critical importance of lawful pathways to the United States for Ecuadorians, including labor and
family reunication pathways”; see DHS, “Implementation of a Family Reunication Parole Process for Ecuadorians,” Federal Register
88, no. 220 (November 16, 2023): 78767; DHS, “DHS Announces Family Reunication Parole Process for Ecuador” (press release,
October 18, 2023); State Department, “Announcement of Safe Mobility Oce in Ecuador” (press release, October 19, 2023).
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C. Safe Mobility Oces
As part of its eort to screen migrants for protection closer to home, the administration announced its
intention to open Safe Mobility Oces
158
(SMOs) in countries throughout Latin America to vet possible
candidates for refugee resettlement as well as other existing lawful pathways, such as parole programs and
employment or family-based visas. Presently, oces with a limited set of services are open in Colombia,
Costa Rica, Ecuador, and Guatemala. The oces are run by the International Organization for Migration
(IOM) and UNHCR, with State Department and USCIS personnel assisting. The administration plans to open
more oces in the hemisphere, and the Canadian and Spanish governments have joined the initiative and
oer screening for refugee resettlement and employment-based visas.
159
SMOs do not in and of themselves increase the number of visas available to migrants—only Congress can
do that. Therefore, the primary function of the oces at present is to provide information about the visa
options and other pathways that are available to migrants, and to refer those in need of protection for
screening by UNHCR.
Noncitizens access the SMOs via an online platform—walk-ins are not permitted and the oces’ addresses
are not publicly available, likely to prevent people from gathering outside them as has happened at regular
visa processing facilities in Mexico.
160
While the U.S. parole programs oer a new manner of entry, they
require that migrants have sponsors, valid passports, and pay for ights to the United States, limiting them
to migrants with connections and resources. SMOs are not doing asylum pre-screening, likely due to legal
limitations. Currently, specic penalties are not being imposed on migrants who visit the oces and then
later travel to the U.S.-Mexico border without authorization. However, the circumvention of lawful pathways
rule and pre-existing U.S. immigration laws mean that these migrants face removal proceedings and
potential ineligibility for asylum.
Host countries have expressed concerns that SMOs could generate expectations about migration that
cannot be met, and initial reporting indicates that the oces’ capacity is limited. As of August 2023, 260 of
the 29,000 applicants to the Colombian SMOs entered the U.S. refugee program.
161
To avoid the presence of
an SMO incentivizing additional people to migrate to the country where the oce is located, host countries
have set criteria making the oces available only to migrants who were already present at the time of the
oces’ announcement. Each country also has limited the nationalities that may access the SMOs, with most
barring their own nationals from using them, Guatemala being the exception.
162
Capacity and migrant expectations are critical issues in Latin America and the Caribbean, where most of
the 7.7 million Venezuelans displaced from their country remain, with many of the host countries having
158 UNHCR, “General Information on the ‘Safe Mobility’ Initiative,” accessed November 24, 2023.
159 Selee, “The Border Crisis That Wasn’t”; DHS, “United States and Canada Announce Eorts to Expand Lawful Migration Processes and
Reduce Irregular Migration” (press release, March 24, 2023).
160 Jules Ownby, “A Three-Month Wait: New US Immigration Plan Marred by Secrecy and Uncertainty,” El Pais, October 2, 2023.
161 Ownby, “New US Immigration Plan Marred by Secrecy and Uncertainty.”
162 UNHCR, “General Information on the ‘Safe Mobility’ Initiative”; see, for example, “During its initial phase, Ecuador’s SMO services
will prioritize Cuban, Haitian, Nicaraguan, Venezuelan, and Colombian nationals present in Ecuador as of October 18 and who
qualify as asylum petitioners or have registered with Ecuador’s Ministry of Interior for a Certicate of Migratory Permanence.” See
also State Department, “Announcement of Safe Mobility Oce in Ecuador” (press release, October 19, 2023).
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made substantial eorts to integrate them into schools, labor markets, and local communities.
163
To
eectively target groups in the region who seek to migrate to the United States, the Biden administration is
considering building up the capacity of SMOs and the participation of destination countries in addition to
Canada and Spain could also expand the legal pathways available to applicants.
D. Central American Minors Program
In 2014, the Central American Minors (CAM) program was created to allow certain children from El Salvador,
Guatemala, and Honduras to enter the United States as refugees or parolees to join their U.S.-based
parents.
164
Created during an era of rising arrivals of unaccompanied children, in particular from northern
Central America, the program seeks to provide a safer pathway for children who might otherwise seek
to travel to the United States unaccompanied. The Biden administration relaunched the program with
expanded eligibility in 2021, after the Trump administration had halted it in 2017.
165
CAM allows certain parents in the United States to request that their child, who may be up to 21 years
old, be considered for refugee status, or if ineligible, to be considered for humanitarian parole. Parents are
eligible to request consideration for their children if they hold lawful permanent resident status, Temporary
Protected Status, parole, Deferred Action for Childhood Arrivals, other form of deferred action, Deferred
Enforced Departure, or withholding of removal. In 2023, the Biden administration expanded the criteria to
include certain parents with pending applications for asylum, U visas (for victims or witnesses to certain
serious crimes), or T visas (for victims of tracking).
166
To begin the process, a parent contacts a designated
refugee resettlement agency. Children are processed in-country and undergo interviews and DNA testing to
verify their relationship with the applicant. Under CAM, USCIS generally grants parole for a three-year period
and working-age recipients may apply for work authorization.
167
Republican-led states have challenged the program in the courts, alleging that ocials have exceeded their
statutory parole authority. Only small numbers of children have benetted from the program. In FY 2023,
USCIS interviewed 600 new CAM applicants; most approved for travel were recommended for parole, not
admission as refugees.
168
Therefore, CAM recipients face the same challenges as other parolees: a grant of
temporary status that does not open the door to legal permanent residence.
7 Return in the Context of Migration Cooperation
The COVID-19 pandemic fundamentally changed how the United States conducted removals and returns.
The Trump administration activated the Title 42 public health policy to block access to asylum by allowing
for the rapid expulsion of border arrivals to Mexico or to their home country. Under Title 42, border ocials
163 Inter-Agency Coordination Platform for Refugees and Migrants from Venezuela, “Key Figures,” August 5, 2023.
164 DHS, “Departments of Homeland Security and State Announce Enhancements to the Central American Minors Program” (press
release, April 12, 2023).
165 Mark Greenberg et al., Relaunching the Central American Minors Program: Opportunities to Enhance Child Safety and Family
Reunication (Washington, DC: MPI, 2021).
166 DHS, “Departments of Homeland Security and State Announce Enhancements to the Central American Minors Program.”
167 USCIS, “Central American Minors (CAM) Program,” updated June 23, 2023.
168 USCIS and State Department Quarterly Refugee Processing Engagement call, September 20, 2023.
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expelled individuals 2.7 million times at the Southwest border from FY 2021 to FY 2023.
169
Never before had
Mexico accepted the return of so many third-country nationals.
Upon taking oce, the Biden administration faced immediate calls to lift Title 42; it left the policy in place
due to high border arrivals and litigation that reached the Supreme Court. When it ended Title 42 expulsions
in May 2023, the U.S. government negotiated with Mexico to continue accepting the returns or removals
of Cubans, Haitians, Nicaraguans, and Venezuelans under standard U.S. immigration laws. Overall, though,
the Biden administration has not carried out as many removals as past administrations, and the inability to
return certain nationalities to their countries of origin continues to limit removal numbers.
170
This matters
because data have shown that if a noncitizen is not removed within a year of arrival, it is unlikely that they
will be removed later.
171
A. International Agreements to Accept Returns
The United States has returned noncitizens to more than 150 countries based on negotiations and
agreements with other governments.
172
Many countries accept return of their nationals, but others have
been considered “noncompliant,” such as Venezuela and Nicaragua. However, Venezuela began accepting
limited returns in October 2023 in return for the lifting of certain sanctions.
173
The United States and Cuba
have a complex diplomatic history, but there have been various periods of agreement to accept returns
in exchange for allowing Cubans to come to the United States legally.
174
Other countries, including China,
India, and Nigeria, are technically compliant, but have been slow at accepting returns in the past.
175
The conditions that countries require for establishing the nationality of would-be returnees is a critical
aspect of conducting returns. In the 1990s, for example, many asylum seekers destroyed their identication
documents during their journeys so that U.S. ocials could not prove their nationality and swiftly return
them. The United States now collects biometric data and shares information with countries such as Mexico,
Guatemala, Honduras, and El Salvador to identify migrants who present security concerns.
176
169 CBP, “Nationwide Encounters.”
170 Muzaar Chishti and Kathleen Bush-Joseph, “Biden at the Two-Year Mark: Signicant Immigration Actions Eclipsed by Record
Border Numbers,” Migration Information Source, January 26, 2023.
171 Nadwa Mossaad, Sean Leong, Ryan Baugh, and Marc Rosenblum, Fiscal Year 2021 Enforcement Lifecycle Report (Washington, DC:
DHS Oce of Immigration Statistics, 2022), 2-5. “[N]oncitizens who are not repatriated within 12 months of being encountered are
rarely repatriated after that. For individuals encountered in 2013 to 2016 who had been repatriated at any point within ve years
of an encounter, 95 percent of those repatriations occurred within the rst 12 months of apprehension.”
172 Mossaad, Leong, Baugh, and Rosenblum, Fiscal Year 2021 Enforcement Lifecycle Report, 2-5. “As of the latest data available for this
report, 60 percent of all Southwest border enforcement encounters from 2013 to 2021 resulted in expulsions or repatriations, 28
percent were still being processed pursuant to the immigration enforcement provisions in Title 8 of the U.S. Code, 6 percent had
resulted in unexecuted removal orders or grants of voluntary departure, and 5 percent had been granted relief or other protection
from removal.”
173 Eileen Sullivan and Frances Robles, “First Venezuelans Sent Back Under New U.S. Policy Arrive in Caracas,” The New York Times,
October 18, 2023.
174 Governments of the United States and Cuba, “Joint Statement between Government of the United States and Cuba,” January 12,
2017.
175 See, e.g., Mark Hosenball and Tim Reid, “Exclusive - U.S. to China: Take Back Your Undocumented Immigrants,” Reuters, September
11, 2015.
176 Lauren Burke, Anastasia Strouboulis, Erok Yayboke, and Marti Flacks, “Tracked: Stories at the Intersection of Migration, Technology,
and Human Rights,” Center for Strategic and International Studies feature, accessed November 24, 2023.
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The United States and Canada also have a Safe Third Country Agreement, as discussed earlier. In conjunction
with the March 2023 agreement update to also cover migrants arriving between ports of entry, Canada
agreed to accept 15,000 migrants from Latin America and the Caribbean (using the Safe Mobility Oces
to identify some of them). Initial reporting suggests that since the Safe Third Country Agreement updates,
some asylum seekers are seeking to cross into Canada in more dangerous areas to avoid detection.
177
Previously, the Trump administration signed safe third country agreements (referred to as Asylum
Cooperative Agreements) with Guatemala, Honduras, and El Salvador. These accords enabled DHS to
transfer asylum seekers to those countries rather than assess their claims for protection in the United
States.
178
The agreement with Guatemala was the only one implemented, and the Biden administration
suspended all three accords in 2021.
179
Countries that accept the return of their nationals (or others) can face political diculties, as has been
seen with the Mexican government receiving backlash for accepting the return of third-country nationals.
Nonprot organizations brought suit in Mexico over the government’s cooperation with the U.S. Migrant
Protection Protocols program. The Mexican Foreign Ministry announced in October 2022 that it was ending
its participation in the program and Mexico’s Supreme Court found that the government acted unlawfully in
not issuing regulations to provide for migrants’ rights.
180
Colombia also halted return ights temporarily due
to allegations of “degrading treatment” of returnees by ICE.
181
Regarding Mexico’s latest agreement to accept the
return of up to 30,000 Cubans, Haitians, Nicaraguans,
and Venezuelans monthly, the government has explicitly
conditioned its cooperation on the continuation of
U.S. parole processes for an equivalent number of the
same nationalities. The U.S. parole processes are being
challenged in U.S. courts and could be blocked. It remains
to be seen how Mexico would react.
The U.S. government’s ability to physically remove individuals has its own resource constraints, as DHS
lacks the necessary capacity to return all removable noncitizens. It has increased the number of removal
ights conducted post-Title 42 to increase deterrence,
182
and from May to September 2023 removed or
177 Isabelle Steiner, “Safe Third Country Agreement Expansion Causes Asylum Seekers to Explore New Routes,” Wilson Center blog
post, September 14, 2023.
178 DHS, “DHS Announces Guatemala, El Salvador, and Honduras Have Signed Asylum Cooperation Agreement,” December 29, 2020.
179 Bolter, Israel, and Pierce, Four Years of Profound Change.
180 Secretaría de Relaciones Exteriores, “Finaliza el Programa de Estancias Migratorias en México bajo la Sección 235 (b)(2)(C) de la
Ley de Inmigración y Nacionalidad de EE. UU., Comunicado No. 401,” October 25, 2022; Suprema Corte de Justicia de la Nacion, “La
Primera Sala Ordena Publicar los Lineamientos para la Atencion de las Personas Migrantes que Se Encuentran Temporalmente en
Nuestro Pais, Bajo El Programa ‘Quedate en Mexico’,” October 26, 2022.
181 Al Jazeera, “Colombia Resumes ‘Removal’ Flights Repatriating Citizens from US,” Al Jazeera, May 5, 2023.
182 For the rst 11 months of scal 2023, ICE Air Operations had completed 4,282 commercial airline removals, an 85 percent increase
from the same period in FY 2022. See Testimony by Daniel Bible, Deputy Executive Associate Director, Enforcement and Removal
Operations, ICE, “After Apprehension: Tracing DHS Responsibilities after Title 42,” before the Senate Committee on Homeland
Security and Governmental Aairs Subcommittee on Government Operations and Border Management, 118th Cong., 1st sess.,
September 6, 2023.
The U.S. government’s ability to
physically remove individuals has
its own resource constraints, as
DHS lacks the necessary capacity
to return all removable noncitizens.
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returned 253,000 individuals.
183
The United States also does not have sucient detention capacity to hold
all removable noncitizens, and it is much harder to arrest and remove people once they are released into
the interior.
184
ICE has a daily holding capacity of approximately 40,000, and Border Patrol facilities, which
are designed for short-term detention, can now hold about 23,000.
185
In August 2023 alone, border ocials
encountered noncitizens 230,000 times.
186
In 2021, the Biden administration ended the practice of detaining families that had begun under previous
administrations.
187
In light of increasing family arrivals, the Biden administration began a program in May
2023 called Family Expedited Removal Management (FERM), wherein families are released into the U.S.
interior and the head of household is placed on an ankle monitoring device and given a nightly curfew.
188
The families are screened for credible fear of persecution within six to 12 days of their arrival, and if no
credible fear is found, they are quickly removed, the goal being removal within 30 days of their arrival. If
credible fear is found, families may proceed with ling asylum applications, though the circumvention of
lawful pathways regulation and its presumption of ineligibility for asylum applies, so they may only be
eligible for withholding or Convention Against Torture protection. The FERM program is operational in
40 cities. As of September 2023, DHS had processed 1,600 families, with plans to continue scaling up the
program.
189
B. Statistics
President Barack Obama inherited a better resourced immigration enforcement regime than his
predecessors and focused on removing from the U.S. interior noncitizens who had been convicted of serious
crimes and recent arrivals, earning the nickname “deporter in chief.”
190
His administration conducted a record
number of removals, averaging 344,000 per year. Despite broadening the scope of migrants prioritized
for enforcement, the Trump administration deported fewer total migrants, averaging 233,000 per year,
partly because local jurisdictions pulled out of or limited their participation in information sharing and
immigration enforcement cooperation agreements with ICE.
191
Starting in March 2020, U.S. ocials used
the Title 42 public health policy to carry out more than 2.8 million expulsions, and ICE ocers were diverted
from interior removal operations to assist CBP at the border.
183 DHS, “Fact Sheet: The Biden-Harris Administration Takes New Actions.”
184 For more on the detention of noncitizens, see Randy Capps and Doris Meissner, From Jailers to Case Managers: Redesigning the U.S.
Immigration Detention System to be Eective and Fair (Washington, DC: MPI, 2021); Straut-Eppsteiner, U.S. Immigration Courts and
the Pending Cases Backlog.
185 TRAC Immigration, “Immigration Detention Quick Facts,” accessed November 27, 2023; DHS, “Fact Sheet: The Biden-Harris
Administration Takes New Actions.”
186 CBP, “CBP Releases August 2023 Monthly Update,” September 22, 2023.
187 Court orders set forth standards of care for migrant children held in immigration facilities, including those who are held with adult
family members, and prohibit the detention of children for more than 20 days. See John Sciamanna, “History and Update on Flores
Settlement” (fact sheet, Child Welfare League of America, n.d.).
188 ICE, “ICE Announces New Process for Placing Family Units in Expedited Removal,” May 10, 2023.
189 DHS, “Fact Sheet: The Biden-Harris Administration Takes New Actions.”
190 Muzaar Chishti, Sarah Pierce, and Jessica Bolter, “The Obama Record on Deportations: Deporter in Chief or Not?,” Migration
Information Source, January 26, 2017.
191 Muzaar Chishti and Kathleen Bush-Joseph, “Biden at the Two-Year Mark: Signicant Immigration Actions Eclipsed by Record
Border Numbers,” Migration Information Source, January 26, 2023.
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Since the Title 42 policy ended in May 2023, DHS has returned more than 300,000 noncitizens (that gure
includes migrants who opted to voluntarily return to their home country or to Mexico).
192
Voluntary return
allows an individual to avoid the ve-year bar on re-entry associated with an unlawful entry into the
United States and was used extensively from the 1980s well into the early 2000s for Mexican migrants. DHS
doubled ICE international removal ights from the rst half to the second half of FY 2023 and formed new
agreements with countries to streamline returns. DHS has removed 17,000 third-country nationals to Mexico
since May 2023, and stated that this was a critical deterrent for hard-to-remove nationalities.
193
C. Interdictions
While the primary challenges that the United States faces today concern unauthorized land arrivals,
increased border enforcement in prior periods has led to more migration at sea and the trend may be
repeating. Recent maritime ows of Cubans and Haitians to the United States have reached the highest
levels since the 1990s. In FY 2022, 7,000 Haitians and 6,000 Cubans were interdicted at sea by U.S. ocials,
and initial data show similar numbers in FY 2023.
194
The U.S. Coast Guard estimated its interdiction success
rate was 56.6 percent in FY 2022, meaning thousands of people likely reached U.S. shores without being
intercepted.
195
The Coast Guard is a sub-agency of DHS, and its sister agency CBP assists with interdictions.
U.S. interdictions of migrants arriving on small boats began in force in the 1980s and were bolstered by
a 1981 agreement between Haitian President Jean-Claude Duvalier and U.S. President Ronald Reagan.
Agreements such as this were the forerunner of today’s multilateral pacts, which typically do not provide
interdicted migrants access to asylum in the United States.
As with migration on land, the Biden administration has increased regional cooperation in the Caribbean
to return migrants intercepted at sea. The Bahamas and Turks and Caicos are key U.S. partners for maritime
enforcement and as part of the partnership, these countries provide real-time operational intelligence to
the Coast Guard. Since 1982, the United States, The Bahamas, and Turks and Caicos have had a trilateral
agreement called Operation Bahamas, Turks and Caicos (OPBAT). Initially focused on narcotics interdiction,
the operation in 2004 grew to incorporate coordination on interdicting migrants at sea.
OPBAT allows the Coast Guard, the Royal Bahamas Police Force (RBPF), and the Royal Turks and Caicos Police
Force (RTCPF) to enter each other’s territorial waters to enable coordination and information sharing. These
agencies share navigational software and work together on search and rescue, migrant interdictions, and
anti-smuggling operations. The Coast Guard also oers training and resources such as ships to the RBPF
and RTCPF. Because of this cooperation, many interdictions occur in Bahamian waters, and migrants are
transferred to Bahamian authorities for repatriation to their country of origin.
192 DHS, “DHS Continues Direct Repatriations of Venezuelan Nationals” (press release, October 24, 2023).
193 DHS, “Fact Sheet: The Biden-Harris Administration Takes New Actions.”
194 Authorities interdicting migrants include the U.S. Coast Guard, CBP, and foreign navies. See Muzaar Chishti, Kathleen Bush-
Joseph, and Colleen Putzel-Kavanaugh, “Can the Biden Immigration Playbook Be Eective for Managing Arrivals via Sea?”
Migration Information Source, October 25, 2023; Muzaar Chishti and Jessica Bolter, “Rise in Maritime Migration to the United
States Is a Reminder of Chapters Past,” Migration Information Source, May 25, 2022.
195 DHS, U.S. Coast Guard Budget Overview: Fiscal Year 2024 Congressional Justication (Washington DC: DHS, n.d.).
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Regional pacts such as OPBAT allow authorities to carry out interdictions in other countries’ waters, so
migrants can be returned as close as possible to where they are encountered. If held by the U.S. Coast
Guard, interdicted migrants are typically kept on deck, separated by gender. Coast Guard personnel visually
assess maritime arrivals for protection needs. For example, if migrants appear to be in distress or they assert
fear of return to their home country, they will be screened for humanitarian protection. As with migrants
encountered on land, USCIS asylum ocers conduct interviews (by phone or in person) to determine
whether migrants have a credible fear of persecution or torture in their origin country; if so, they may be
processed for resettlement in a third country. The rest are summarily returned.
For more than 30 years, DHS and the State Department have used the Migrant Operations Center located
on a U.S. naval base at Guantanamo, Cuba to process individuals interdicted at sea. In anticipation of a
possible new upswing of Haitian arrivals, the Biden administration in 2022 reportedly considered doubling
the migrant holding capacity at Guantanamo to 400 beds. ICE is responsible for caring for maritime arrivals
awaiting USCIS screenings as well as those found ineligible for protection who are awaiting repatriation. The
State Department is responsible for the care of migrants eligible for refugee resettlement abroad.
Only about 1 percent of people interdicted are found eligible for protection, according to the Coast Guard,
though immigrant-rights advocates have long claimed the lack of systematic screening and access to
asylum violate international law.
196
In January, the DHS Oce for Civil Rights and Civil Liberties opened an
investigation into interdiction practices, protection screening, and migrant care, after almost 300 nonprot
organizations alleged that U.S. operations discriminated against migrants traveling at sea and create a
dangerous precedent for other countries.
Despite decades of increased budgets for migration enforcement on land, the U.S. government has been
less willing to signicantly increase spending on maritime interdiction. For example, the total Coast Guard
budget went from $11 billion in FY 2013 to $13.9 billion in FY 2023, meanwhile CBP’s budget increased from
$11.7 billion in FY 2013 to $20.9 billion in FY 2023, and ICE’s increased from $5.6 billion in FY 2013 to $9.1
billion in FY 2023.
197
Monitoring and Compliance with International Standards
The United States does not conduct extensive monitoring of the situation of returnees or compliance with
international standards. Country-of-origin information factors into the adjudication of asylum applications
though and the United States maintains a physical presence of 173 embassies and 88 consulates that
monitor country conditions.
198
The development of Safe Mobility Oces in countries of origin and
associated networks of local civil-society organizations may bolster the ability to monitor the situation of
returnees.
196 Comments made by U.S. Coast Guard ocials during July 2023 meeting with nonprot organizations.
197 Chishti, Bush-Joseph, and Putzel-Kavanaugh, “Can the Biden Immigration Playbook Be Eective for Managing Arrivals via Sea?.”
198 VisaPlace, “US Embassy and US Consulate Listings for Immigration and Visas to the United States,” accessed November 24, 2023.
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8 Conclusion
Bymost measures, the U.S. asylum system does not meet its objectives. Those eligible for asylum do
not receive it in a timely manner, and migrants deemed ineligible are not returned to their countries of
origin. Increasing arrivals at the U.S.-Mexico border continue to overwhelm enforcement and protection
screening capacity, and asylum adjudications cannot keep up with new lings. Although the immigration
courts completed an estimated record half a million cases in FY 2023, more than 1 million new cases were
funnelled onto a docket that now exceeds 2 million cases. Thus, many migrants in need of protection
will continue to face years of uncertainty. Nor can U.S. ocials remove most migrants found ineligible for
asylum, despite returning record numbers in FY 2023. Experience shows migrants who are not removed
within one year of arrival are not likely to be removed at all, and this systemic failure serves as a strong pull
factor for continuing irregular migration.
In responding to these challenges, the Biden administration has issued the circumvention of lawful
pathways rule, which establishes a presumption of ineligibility for asylum for those entering the country
illegally between ports of entry, while ocials are also providing humanitarian parole and two-year stays
in the United States for asylum seekers who enter the country using the CBP One app.Critics have charged
that the new rule’s limitations on long-established territorial asylum practices violate international law and
principles; lawsuits challenging the rule are moving through the federal court system.
Alongside the circumvention of lawful pathways rule, the administration has rebuilt and modernized
aspects of the U.S. protection system. Migrants can now le applications for asylum and work permits
online, and U.S. Citizenship and Immigration Services quickly processes requests for humanitarian parole,
allowing hundreds of thousands of migrants to enter the country on temporary status. The administration
has also vastly expanded access to Temporary Protected Status (TPS), permitting hundreds of thousands
of migrants already in the country without authorization to stay and work. But TPS does not come with a
pathway to permanent residence, which only Congress can provide.
Adopting a cooperative approach to migration in the Western Hemisphere, the administration has pressed
neighboring nations to collaborate in developing a new regional migration management system that
includes a network of Safe Mobility Oces (SMOs) throughout the hemisphere. The goal is to provide
intending migrants with opportunities to apply for refugee processing closer to their home countries and
get accurate information on other migration pathways to the United States, Canada, and Spain.The SMOs
are a work in progress that can, in the near term, address only a fraction of the need, but that represent an
element of a longer-term vision for regionwide shared responsibility.
The administration has also sought to expand pathways by restoring the refugee resettlement system,
which had been largely dismantled under the prior administration. The refugee resettlement program is on
track to reach the target of 125,000 refugee admissions in FY 2024through the digitization of applications
and concurrent processing, which allows ocers to conduct multiple parts of the screening process
simultaneously. The immigration courts also now utilize technology to conduct hundreds of thousands of
remote videoconference and internet-based hearings.
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Nonetheless, the government’s eorts are insucient to meet the scale of the challenge.A new era of global
displacement is underway that includes major movements within the Western Hemisphere. Insucient
resources and litigation largely dictate policy on the ground, and the pressures on destination cities that
are receiving tens of thousands of migrants for which they have not been prepared has shifted public
opinion even among strongly pro-immigration elected leaders, who are calling for more eective border
enforcement measures, reduced numbers of asylum seekers, and increased federal funding to support
migrant services.
Looking ahead, only Congress can update U.S. immigration laws and more lastingly fortify steps that the
executive branch has made, including providing immigration pathways apart from applying for asylum. In
the near term, congressional approval of a $13.6 billion appropriations request the administration made
in October 2023 would generate the massive infusion of resources needed to properly support the asylum
system across all its elements. That would, in turn, provide the necessary foundation for increased regional
cooperation that is essential to manage migration over the longer term, given that the phenomenon of
large-scale movements within the Western Hemisphere are unlikely to end soon.
Looking ahead, only Congress can update U.S. immigration laws and more
lastingly fortify steps that the executive branch has made, including providing
immigration pathways apart from applying for asylum.
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About the Author
KATHLEEN BUSHJOSEPH
Kathleen Bush-Joseph is a Policy Analyst with the U.S. Immigration Policy Program
at the Migration Policy Institute (MPI). A lawyer, she has experience with removal
proceedings, asylum, and refugee law. Prior to joining MPI, she worked at the National
Immigrant Justice Center in Chicago, consulted for the United Nations Oce of the
High Commissioner for Human Rights (OHCHR) in Geneva, and was a sta attorney at
the Legal Aid Society in New York City.
Ms. Bush-Joseph earned her juris doctor at the University of California, Los Angeles
School of Law with a specialization in international and comparative law. She earned
a bachelor of arts in history from Georgetown University. She is barred in the Third
Department of New York.
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Acknowledgments
The author is grateful to current and former Department of Homeland Security and Executive Oce for
Immigration Review ocials, immigration attorneys, and advocates, as well as legal service providers and
academics whose insights and perspectives on the U.S. asylum system were invaluable in completing this
work.
The author wishes to thank colleagues Doris Meissner and Susan Fratzke for their analytical direction
and support; Colleen Putzel-Kavanaugh and Faith Williams for their research assistance; and the MPI
communications team for its editorial and strategic outreach support.
The author thanks the Clingendael Institute for its support of this research.
MPI is an independent, nonpartisan policy research organization that adheres to the highest standard of
rigor and integrity in its work. All analysis, recommendations, and policy ideas advanced by MPI are solely
determined by its researchers.
© 2024 Migration Policy Institute.
All Rights Reserved.
Design: Sara Staedicke, MPI
Layout: Liz Hall
Cover Photo: Mani Albrecht/U.S. Customs and Border Protection
No part of this publication may be reproduced or transmitted in any form by any means, electronic or mechanical, or included in any
information storage and retrieval system without permission from the Migration Policy Institute. A full-text PDF of this document is
available for free download from www.migrationpolicy.org.
Information for reproducing excerpts from this publication can be found at www.migrationpolicy.org/about/copyright-policy.
Inquiries can also be directed to communications@migrationpolicy.org.
Suggested citation: Bush-Joseph, Kathleen. 2024. Outmatched: The U.S. Asylum System Faces Record Demands. Washington, DC:
Migration Policy Institute.
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