DHS's new rule: Asylum officers will do the work of immigration judges

AP Photo/Pablo Martinez Monsivais

A new rule issued by DHS on procedures at the border didn’t garner much attention, given the other stories dominating the news. The Department of Homeland Security announced that asylum officers will determine asylum claims of migrants at the border rather than immigration judges. The decision was made entirely because of the overwhelming backlog facing immigration judges assigned to asylum cases.

The purpose of the new rule is to shorten the time between when a migrant crosses the border and the ruling issued on whether or not they should be deported. If an asylum officer allows the migrant to remain in the United States, he or she can bypass the immigration courts. If an asylum officer decides that a migrant isn’t eligible for asylum, the case goes to an immigration judge. The judge has 90 days to make a determination on whether or not the immigrant should be deported.

The administration has not yet decided how many migrants will be allowed to use the new process because of a limited number of asylum officers. Like the number of immigration judges, the Biden administration has failed to increase the number of asylum officers working on the Biden border crisis. This new rule simply shifts the initial decision-making system from immigration judges to asylum officers.

There is a backlog in immigration courts of over 1.2 million cases. There is a two-year wait for most migrants to receive a decision on asylum. DHS Secretary Mayorkas said, “The current system for handling asylum claims at our borders has long needed repair.” Yes, obviously. Too bad there is no desire from the White House or the DHS secretary to handle the mess that this administration created on the southern border. Since the onset of the border crisis when Biden was elected, the flood of migrants to the southern border has required more resources. Border Patrol agents and other law enforcement working on the border have pleaded for more personnel, more resources to handle the crisis.

None of the new plan affects unaccompanied minors crossing the border. They are given special protection and not deported, they are allowed to remain in the United States. Those planning to illegally enter the United States know this and that is why so many unaccompanied minors continue to show up at the border, waiting for law enforcement to take them into custody. They fall prey to human traffickers and drug cartels, left on their own when they are dumped at the border by adults.

The plan was first discussed in July 2021 as a means to speed up the process and take some of the workload off immigration judges. At that time, the administration also considered providing families crossing the border legal counsel but that idea didn’t make it into the latest plan.

The new rule goes into effect in May. The hope is that the process will be one that resolves asylum claims in months instead of years. Mayorkas said, “Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed.” Attorney General Merrick Garland said that the change will reduce the burden on immigration judges. There are only 500 judges to handle more than a million pending cases, not to mention new cases arriving every day.

All of this comes as the administration prepares for a new wave of illegal migration that is expected to come to the southern border when Biden ends the use of Title 42 at the border. There will be no more automatic expulsions due to public health concerns, one of the tools used to mitigate the overcrowding at the border. The new rule will allow those who have been expelled to seek asylum again.

The administration has not said if the illegal migrants will be placed in detention centers but that is unlikely, given the push to close them. DHS wants less facilities, not more, to be available to take illegal migrants. They are released into the United States until their asylum claims are decided, often without any monitoring. This is deliberate. Biden doesn’t want a secure southern border. It has been clear since he took office that he’s happy to ignore the humanitarian crisis he has created.

Over 2,500 migrants were apprehended by Border Patrol last weekend at the southern border. Most are from Nicaragua and Cuba. If Title 42 is not renewed in April, look for a dramatic increase in those numbers. The new rule will be implemented in phases. Biden promised to overhaul the immigration system. Unfortunately for law abiding immigrants, that has meant allowing record numbers of illegal migrants to receive top priority. Border communities still do not have the resources they need to handle the Biden border crisis and there is no other explanation than this is intentional. What is to stop asylum officers from simply granting asylum requests instead of challenging them and sending the claims to immigration judges in order to make it look like the backlog is being addressed? Will they be pressured by DHS to make quotas each week or daily on how many illegal migrants they process? This doesn’t sound like the kind of reforms that Americans can feel confident about, especially coming from this administration.