Homeland Security has issued new rules requiring every affirmative-asylum decision to undergo a supervisor’s review, in a move the department described as “quality assurance” but which one former staffer said was an attempt to browbeat officers into approving more cases.
The memo from U.S. Citizenship and Immigration Services revokes a Trump-era policy that had chiefly limited reviews to decisions by new asylum officers, figuring that those on the job more than six months or who had done at least 150 cases no longer needed hand-holding.
Andrew Davidson, chief of USCIS’s asylum division, called that policy “deficient” and said it “no longer reflects the … operational reality and it is not appropriately tailored to the program’s quality needs.”
Beneath that bureaucratic-speak, former agency officials said what the Biden team is doing is scrapping a policy that made adjudications more efficient all in the name of wiping clean anything with the Trump imprimatur.
“This is odd,” Ken Cuccinelli, who made the changes while running USCIS in 2019, told The Times. “It will slow down case consideration for sure.”
“My change to that policy was a pure common-sense, efficiency effort,” said Mr. Cuccinelli, who later became acting deputy security at Homeland Security.
Asylum is a humanitarian protection requested by migrants already in the U.S., allowing them to stay and gain full legal status without fear of deportation. It’s similar to refugee status, though those people apply from outside the U.S.
Asylum petitions come in two flavors: “defensive,” which are lodged by those arrested as undocumented immigrants seeking to cancel their deportation, and “affirmative,” which are proactively filed.
In 2018 and 2019, more than 203,000 affirmative petitions were filed. Slightly more than 52,000 were approved.
Venezuela, Guatemala, China and El Salvador were the countries that had the most citizens applying.
The standard for asylum is supposed to be someone who is fleeing government-sanctioned persecution at home, though who exactly should qualify is heatedly debated.
The Trump administration tightened the window, arguing general crime and violence weren’t sufficient, and the system was being abused by traditional immigrants without documentation who were making bogus claims. Immigrant-rights activists countered that the Trump team was denying valid claims.
Biden administration officials echo the activists’ concerns, and have vowed to undo the Trump changes.
In his memo explaining the new change, Mr. Davidson said the Trump administration’s hiring surge brought on a glut of new officers who need the extra hand-holding. He also blamed the coronavirus pandemic, saying there have been too few cases coming through to give everyone enough training.
“As a result, recent quality assurance reviews, including one conducted of affirmative cases, not all of which received supervisory review, highlighted issues to be addressed relative to the quality of adjudications,” he wrote.
The Times asked USCIS for the data to back up Mr. Davidson’s “quality assurance” claim but the agency did not provide it. The agency also did not answer questions about the potential for increased backlogs due to the change.
Instead a spokeswoman issued a statement echoing Mr. Davidson’s memo.
The Times reached out to several immigrant-rights groups active on asylum issues but none provided comment.
Robert Law, who was chief of USCIS’s Office of Policy and Strategy under the previous administration, said the Biden change is an insult to the asylum officers that the Trump administration hired, many of whom had law enforcement backgrounds, as it tried to make headway on the backlog of cases.
“What they really mean is ‘You haven’t drank the Kool Aid yet and you might apply the actual law,’” said Mr. Law, who is now director of regulatory affairs and policy at the Center for Immigration Studies.
Mr. Law said imposing a supervisor review is a way of warning asylum officers they need to find a way to get to “Yes” on approving applications.
Joseph Edlow, who was acting director of the agency at the end of the Trump administration, said the change will boost the backlog of cases, but he doubted it would make much difference in the end on who gets approved or denied.
The 2019 change didn’t really change approval rates, so there’s no reason to believe reversing the change will either, he said.
“It’s redundant and it’s not going to do anything to move the cases forward,” he said.
Any affirmative petitions denied by USCIS are reviewed by immigration courts, so the agency is not the final word anyway.
Revoking the asylum review policy is the latest in a series of moves the Biden team has made to wipe out the Trump legacy on immigration.
President Biden has also halted border wall construction, canceled asylum cooperation deals with Central American countries, revoked the so-called “Remain in Mexico” policy and allowed undocumented immigrant juveniles who arrive without parents to escape the coronavirus border shutdown.