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What's more, there is addition bad news buried within the proposed EAD rules. USCIS has included new Asylum Office data, which shows a steep decline in asylum grant rates.
Let's start with the EAD rules, which will apply to cases at the Asylum Office and in Immigration Court. Under these rules, asylum applicants will have to wait 365 days before applying for an initial EAD, instead of the current 150-days. Also, processing time for the initial EAD will increase from 30 days to 180 days. Worst of all, DHS plans to pause the acceptance of initial asylum-pending EAD applications when "the average processing time for affirmative asylum applications... exceeds 180 days." DHS estimates that it will take "between 14 and 173 years to reach a 180-day processing time" (and yes, this is an actual quote from the proposed rule). Until then, no new asylum applicants will get EADs. The only saving grace here is that this rule applies only to initial EADs. It does not apply to renewals or to people replacing lost cards. However, for new asylum applicants, the rule--if implemented--will almost certainly block them from obtaining a work permit during the course of their asylum case.
Even if the "pause" is not implemented, the new rule would block certain applicants from obtaining work authorization. These include any EAD application where there is "reason to believe" that the person may be subject to a criminal bar to asylum. Also blocked from an EAD are most asylum seekers who filed for asylum more than one year after arriving in the U.S. and most people who entered without a visa (the main exception here is when the asylum seeker is an unaccompanied minor).
These provisions would only apply to new applicants and not to people who filed for asylum before the rule goes into effect. Thus, for people who already have an EAD, these rules should have no impact. Also, these are "proposed" rules, which should not go into effect before April 24, 2026, and which could--and hopefully will--be blocked by a court.
As I read these rules, the only provision that seems to apply to someone with a current case is the proposal to "prioritize asylum applications for adjudication if USCIS finds derogatory information" while processing the EAD. So for example, if the Agency discovers that an EAD applicant has a criminal conviction, it will expedite that person's asylum interview, presumably so it can deny asylum based on a criminal bar.
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Contained within the announcement for the new rules, we find some Asylum Office statistics. This data was released solely for the purpose of justifying the new EAD restrictions, and it is not nearly as detailed as we might hope (and as we often received from prior Administrations). Nevertheless, it does give us some insight into how the Asylum Offices are operating now. The data was released in the form of a chart:
Asylum Data.png
Let's look a bit more deeply at these numbers. To do that, I will attempt something that lawyers should generally avoid: math.
First, it is important to understand each column of the chart. The years listed on the left are fiscal years, so for example, FY2025 runs from October 1, 2024 to September 30, 2025. The "Receipts" column is the number of new affirmative asylum applications filed during the relevant fiscal year. "Pending" is the total number of cases pending at our nation's Asylum Offices at the end of the fiscal year. "Total Completions" is the number of cases that were completed during that fiscal year. There are three ways a case can be completed, as shown in the last three columns. "Approved" means asylum was granted. "Admin Closed" means the case was closed without a decision. "Denial/Referral" is for asylum cases that received a final denial (where the person has some other lawful status in the U.S.) or was referred to Immigration Court (where the person has no legal status in the country).
One piece of data that stands out is the number of admin closures, which have increased dramatically in the last few years. Indeed, in FY2025, admin closures represented 88.6% of all Asylum Office decisions. We don't know, but I suspect that most administratively closed cases represent people who entered at the U.S.-Mexico border and should have been sent to Immigration Court. For whatever reason, a court case was not initiated, and so they filed affirmatively for asylum. For the last couple years, the Asylum Offices have been reviewing their case loads and sending these people to Immigration Court. Admin closed cases could also include people who obtained their Green Card some other way or who left the United States.
The increase in admin closures means that grants and denials account for a smaller percentage of total decisions, and so to get a better sense of how the Asylum Offices are deciding cases under Trump 2.0, we should remove admin closures from the calculation. Also, President Trump took office almost four months into FY2025, and so in order to determine the asylum grant rate under his Administration, we need to exclude decisions from the first quarter of FY2025 (when Mr. Biden was still President). To do that, I will assume that cases were approved and denied during this period at the same rate as in FY2024 (this is where the math comes in).
The result of my calculations is that grant rates at the Asylum Offices have dropped significantly since President Trump took office. Excluding cases that were administratively closed, the asylum grant rate for the first eight months of the Trump Administration was 22.8%. Compare that to a 75.1% grant rate in FY2024, 64.5% in FY2023, and 32.9% in FY2022.
Why the asylum grant rate has dropped so quickly and so steeply is a topic for another day. But what seems clear is that the Administration's broad-based attack on immigration has not spared the Asylum Offices. What's also clear is that some applicants are still receiving asylum. If people gather evidence, address weak points in their case, and prepare for their interview, it is still possible to win asylum even in this hostile environment.
Originally posted on the Asylumist: www.Asylumist.com
