A forthcoming article by Professor Faiza W. Sayed of Brooklyn Law School examines the history and failings of the U.S. affirmative asylum system, and proposes some bold solutions that could help save asylum as we know it.

I should start by saying that I am a fan of Prof. Sayed's work. She and her team at the Safe Harbor Clinic recently published a scathing report about the New York Asylum Office, which examines why that office has the lowest grant rate in the United States. The Professor was kind enough to send me a draft of her upcoming article, Reimagining Affirmative Asylum, which builds on her previous study. Her proposed reforms offer hope that our beleaguered asylum system can still be salvaged.

Anyone familiar with affirmative asylum in the United States knows that the system is a disaster. There are currently more than 1.1 million cases pending in our nation's Asylum Offices. Many applicants have been waiting six, seven, eight years or longer with no hope of an interview or decision anytime soon. This mess leaves many--including me--wondering whether the affirmative asylum system is worth saving. As I read her article, I get the sense that Prof. Sayed is not sure either.

The Professor begins her analysis with an important and often overlooked observation. Policy makers who created the affirmative asylum system--

believed that the Asylum Office would quickly grant meritorious asylum cases and refer frivolous or complicated cases to immigration court for further adjudication. They imagined affirmative grant rates would climb as quick adjudications by AOs [Asylum Officers] and other features of the new system would discourage the filing of frivolous applications. Speedy grants at the Asylum Office would save money by reserving immigration judge (IJ) time for difficult cases. Creating a professional corps of AOs would also increase the quality and consistency of decision-making in the asylum system.

This for me is the key point: The affirmative asylum system exists to quickly grant eligible cases and to refer all other cases to Immigration Court. Unfortunately, that is not how things have worked in practice. The AOs spend significant time nit picking their way through cases looking for reasons to deny. They waste precious time orally updating the asylum form with information that is mostly irrelevant to eligibility. Worse, the AOs frequently make the wrong decision. The "most recent statistics reveal that IJs ultimately grant asylum to 76-83% of asylum seekers referred to [Immigration Court] by AOs." As one of Prof. Sayed's interviewees, a former senior official in the Asylum Office asked, “If people are just going to end up in immigration court anyway, what’s the point of any of this?"

So what can be done? While Prof. Sayed has some helpful suggestions on the individual level (focus on preparing testimony rather than creating a detailed affidavit, find opportunities to highlight corroborating evidence during the interview, don't be afraid to request a supervisor or file a complaint), the main focus of her article is on "the system." Prof. Sayed recognizes that "new and creative solutions are desperately needed," and she offers several reforms intended to help save the asylum system:

Backlog Clearance: For a new adjudication system to have even a chance of succeeding, it must begin with a fresh start. Therefore, the first step in reforming the affirmative asylum program must involve swift resolution of the 1 million pending cases before it. Prof. Sayed presents two options. The slower option involves AOs conducting a paper review of all pending cases to either grant asylum to eligible applicants or refer them to immigration court where they could pursue asylum or other relief. The faster option involves an “asylum amnesty” where all applicants with currently pending asylum applications would be granted temporary legal status so long as they completed an application form, paid a fee, and passed a background check. The fee would allow USCIS to hire sufficient staff to review the applications. After one year in temporary status, applicants would be eligible to apply for permanent residence.

Ending AO Diversions for Border Work: 89% of AOs were diverted to conduct border interviews during FYs 2016-19. This diversion must end if the reimagined system has any hope of succeeding. Rather than deploy AOs to do Credible Fear Interviews (initial evaluations of asylum eligibility at the border), arriving noncitizens should be referred directly to court for a fuller exploration of the asylum claim. In the alternative, if CFIs are retained, different officers should conduct them so that AOs can focus on affirmative adjudications.

Group-based Asylum Claims: While the United States has always relied on individual adjudication of asylum claims, group-based recognitions exist in other countries. Prof. Sayed suggests that the Asylum Office use the “pattern or practice” provision to establish group-based asylum claims that dispense with individual interviews. Under this scheme, certain groups would be designated as presumptively eligible for asylum because country conditions information establishes that members of the group face a “pattern or practice” of persecution based on a protected ground. Group-based adjudications have many benefits, including quicker adjudications and greater consistency.

Speedy Adjudications via Paper Grants and Brief Interviews: Once the backlog is cleared, it is important that a new backlog does not develop. Brief adjudications are key to accomplishing this. This will require three major changes to the way the Asylum Office currently operates: (1) paper grants without an interview, (2) shorter interviews in cases not appropriate for a paper grant, and (3) a revised and shortened decision write-up. Prof. Sayed notes that there is precedent for adjudicating humanitarian immigration applications without an interview, including T-visas for trafficking survivors and self-petitions for abused spouses.

Promoting Transparency and Accountability: To promote transparency and to ensure AO accountability, a neutral party--such as UNHCR--should be allowed to observe asylum interviews and review decisions to ensure they comply with the law.

Increasing Representation Rates: For a system of paper grants to be efficient, asylum seekers must submit fully documented claims. To do that, most asylum seekers will need the assistance of an attorney. Advocates should push for funding to increase representation in affirmative asylum cases.

Changes to AO Qualifications: The AO position should require a law degree and experience with immigration law.

Increasing Pathways for Alternative Legal Migration: The unceasing media attention on the border and politicians’ extreme proposals in response to it reveals the politically fragility of asylum protections. To save the asylum program, attention does need to be given to reducing the number of people arriving at the border, but the answer is not getting rid of due process or curbing asylum protections. The only way to reduce the number of migrants is to create other pathways for legal migration. If more migrants can apply for lawful migration without leaving their homes, less will risk the dangerous and expensive journey here to apply for asylum once they arrive.

The asylum system is in a desperate state. We need bold, creative ideas like these to reduce the backlog, ratchet down the political tension related to asylum, and save our humanitarian immigration regime. Prof. Sayed's article makes many excellent points. I hope policymakers will pay attention.

If you are interested in obtaining a draft of Prof. Sayed's article, you can contact her through Brooklyn Law School.

Originally posted on the Asylumist: www.Asylumist.com