Forty Members of Congress recently wrote a letter to DHS Secretary Alejandro Mayorkas and USCIS Director Ur Jaddou expressing concern about the affirmative asylum backlog, which as of April 2021, had reached a record high — nearly 400,000 applications.

An asylum application is considered “affirmative” when the applicant is not in removal proceedings.

USCIS asylum officers adjudicate affirmative applications, whereas in removal proceedings, immigration judges adjudicate them. The applications are considered “defensive” in removal proceedings because they prevent the applicant from being deported.

Currently, USCIS has around 800 asylum officers. Biden plans to hire 1,000 more, but apparently doesn’t intend to use them to reduce the affirmative application backlog. Instead, Biden has proposed a regulation that would authorize asylum officers to adjudicate the asylum applications of aliens apprehended at the border who otherwise would have to be adjudicated by immigration judges. He expects this to reduce the immigration court’s 1,425,447 case backlog.

The members of Congress who sent the letter raise legitimate concerns, but I don’t think the solutions they propose would reduce the backlog.

Affirmative asylum application process

An alien does not have to have lawful immigration status to be eligible for asylum, but section 1158(d)(5)(A)(i) of the Immigration and Nationality Act (INA) prohibits granting an affirmative asylum application until the identity of the applicant has been checked to determine whether he is inadmissible or deportable and whether he has done something that would make him ineligible for asylum.

Asylum applicants are interviewed by USCIS asylum officers in a non-adversarial manner, but they can bring an attorney with them to the interview. The asylum officer decides whether asylum should be granted, and his decision is reviewed by a supervisory asylum officer.

With some exceptions, if the asylum officer denies an alien’s asylum application and the alien appears to be inadmissible or deportable, the officer is required to refer the case to an immigration judge for removal proceedings. If this happens, the alien can submit his asylum application again in the removal proceedings and the immigration judge will do an independent review of his persecution claim.


Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at