At Attorney General Jeff Sessions’s behest, the Justice Department on Monday rolled back an Obama-era decision expanding the rationales under which migrants could seek asylum. That 2016 decision allowed domestic abuse as a justification for an asylum application. Per Sessions, it won’t any longer, in most cases.
He explained the change in a speech.
“Beginning in 2009, more and more aliens who passed an initial USCIS credible-fear review were released from custody into the United States pending a full hearing,” Sessions said, referring to the U.S. Citizenship and Immigration Services agency. “Powerful incentives were created for aliens to come here illegally and claim a fear of return. In effect, word spread that by asserting this fear, they could remain in the United States one way or the other. Far too often, that rumor proved to be true.”
The result? “Credible-fear claims have skyrocketed, and the percentage of asylum claims found meritorious by our judges declined,” he said. He was scaling back the eligibility for seeking asylum, he said, because “asylum was never meant to alleviate all problems — even all serious problems — that people face every day all over the world.”
It’s true, as Sessions said, that there is a backlog of more than 700,000 immigration cases, “more than triple what it was in 2009.” Data from TRAC at Syracuse University makes that clear. (The data are fiscal years.)
As Sessions noted, the uptick began in about 2009. But that increase is for all cases, not just asylum ones.
There are two ways asylum is granted. The first is affirmatively, with USCIS granting asylum to a migrant who’s requesting it. The second is defensively, with a migrant who is facing deportation going before a judge in the Justice Department’s Executive Office for Immigration Review. The number of people receiving asylum in 2016, the most recent year for which data was available, was about what it was in 2010 and, excluding 2010, lower than every other year since 1995.
TRAC found that this was, in part, a function of an increase in the share of asylum requests that were being denied. In 2012, 44.5 percent were denied. By 2016, that had risen to 56.6 percent. The number of cases that were resolved during that period barely budged. (These are immigration court cases, meaning they are defensive.)
Although Sessions didn’t articulate the figure, a January report from USCIS indicated that the agency was facing a backlog of 311,000 pending asylum cases as of the 21st of that month. That’s less than half of the total backlog.
It’s also not clear that the backlog is a function of a surge of requests predicated on concerns about domestic violence.
Most of the requests that were granted came from parts of the world besides North or South America — at least until 2015. The peak, according to Department of Homeland Security data, was about 15,000 requests granted for migrants arriving from Asia in 2012. (Most of those were from China.)
In 2014 and 2015, though, asylum requests from North America were granted at a much higher volume. Was this a result of the Obama administration’s decision to allow domestic violence as a rationale for receiving asylum, a decision that was handed down in late 2014?
Most of that rise was due to increases in El Salvador, Guatemala and Honduras, three countries that, during this period, saw a spike in violent crime, leading to a sharp increase in asylum claims. Mexico, a much larger country, didn’t see a similar spike, and the number of people receiving asylum didn’t increase, either.
At the same time, these four countries were among the five nations with the highest rates of declined asylum requests for those with more than 1,000 requests per year, according to TRAC’s 2016 data. Nearly 9 in 10 requests from Mexico were rejected between 2011 and 2016. About 83 percent of requests from El Salvador were rejected over that period, as were 80 percent from Honduras and 77 percent from Guatemala. Combined, there were about 40,000 requests from those four countries over a five-year period.
Some of those requests were probably predicated on the policy at issue, but it’s not clear how many. It’s not clear if Sessions knows precisely how many. He notes a spike in the backlog of immigration cases but not how many are related to asylum claims — and notes that it started five years before the legal decision with which he’s taking issue.
One hallmark of the Trump administration has been to cite specific problems and use them as a justification for solutions that aren’t demonstrably related. Here, it’s not demonstrably the case that revoking the ability of people to assert that they are seeking asylum because of domestic violence will appreciably reduce the backlog.
The downside to the change, of course, is that people fleeing domestic violence may be turned away at the U.S. border and forced to return to the dangerous environments from which they came. Sessions didn’t clearly articulate the scale of the upside against which that downside should be considered.