Abstract
Excerpted From: Anna R. Welch and Sara P. Cressey, Dropping the Veil: How an Investigation into One Asylum Office Reveals Systemic Failures Within the U.S. Affirmative Asylum System, 57 Loyola of Los Angeles Law Review 1 (Winter, 2024) (257 Footnotes) (Full Document)
The United States' promise of safe haven to those fleeing persecution--an obligation enshrined in both international and domestic law often remains unfulfilled, particularly for racial minorities and other marginalized groups. Indeed, the right to seek asylum at the southern border was virtually nonexistent during the era of Title 42 and remained severely curtailed under the Biden Administration's asylum ban, which replaced Title 42 and survived until it was struck down by a federal judge in the Northern District of California. Both Title 42 and Biden's asylum ban disproportionately impacted migrants of color. The policies also placed asylum seekers in severe, often life- threatening danger, whether in Mexico or in their countries of origin to which they were returned.
Those who do manage to make it into the United States to lodge an asylum claim face a Byzantine administrative process plagued by “monumental” backlogs, leading to years-long (or even decades-long) wait times. This Article focuses on one particular aspect of the asylum system, reporting on the first ever comprehensive study into the inner workings of an asylum office in the United States. The findings of the study, set forth in the full report Lives in Limbo: How the Boston Asylum Office Fails Asylum Seekers, reveal larger systemic failures within the broader affirmative asylum system.
The investigation into the Boston Asylum Office, spearheaded by lead investigator Anna Welch, involved both qualitative and quantitative research methods. Researchers analyzed documents and data produced by U.S. Citizenship and Immigration Services (USCIS) in response to litigation brought by the authors and their co-counsel to compel compliance with a Freedom of Information Act (FOIA) request, as well as USCIS Quarterly Stakeholder Reports. In addition, researchers conducted more than one hundred interviews with former supervisory asylum officers, former asylum officers, immigration attorneys, former asylum seekers, and asylees. The research was completed in January 2022, and the report was released to the public on March 23, 2022.
This Article reproduces the findings of the report and examines their significance in the context of the affirmative asylum system as a whole, particularly in light of recent significant changes to the asylum adjudication process under the Biden Administration that give asylum officers even broader authority. The report's major conclusion is that the Boston Asylum Office maintains an asylum grant rate well below that of the national average. Yet the report's findings reveal concerning practices that are common to asylum offices throughout the country and cast doubt on the capacity of the affirmative asylum system as a whole to render fair and unbiased decisions. Unless and until the inner workings of U.S. asylum offices become more transparent and other meaningful reforms are implemented, we cannot be confident that asylum seekers are receiving due process in our asylum offices.
This Article proceeds as follows: Part I provides the necessary background on the U.S. asylum process to give context to the arguments that follow, beginning with the historic origins of U.S. asylum and then discussing the asylum applicant's burden of proof as well as the procedural process asylum applicants face depending on whether they are applying for asylum before USCIS or before one of the Department of Justice's immigration courts. Part II discusses our study's major findings and conclusions, including the existence of bias in asylum adjudications, an improper, often sole focus on credibility in asylum decision-making, the outsized role that supervisory asylum officers play in influencing asylum decision-making, asylum officer time constraints and immense caseloads, and compassion fatigue and burnout plaguing asylum offices around the country. Finally, Part III provides a number of recommendations for addressing the various due process failures identified in our study.
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An asylum seeker's likelihood of success should not depend upon where in the United States they have decided to put down roots. Even more fundamentally, a person seeking safe haven in the United States should never face the prospect of being badgered, harassed, or otherwise demeaned by a person whose job it is to safeguard their rights. Although our study focused on one asylum office, it brought to light concerning practices that are common across U.S. asylum offices, and our findings cast significant doubt upon the fairness of the affirmative asylum system as a whole. Given the life-or-death stakes in asylum cases, additional investigation into the inner workings of asylum offices nationally remains imperative to ensure that due process is realized for asylum seekers. The concerns discussed in this Article are particularly salient as the Biden Administration has turned to asylum officers as the silver bullet that will solve our massive immigration backlogs, placing more power and influence in their hands.
Since the release of our study in March 2022, the Boston Asylum Office has instituted a number of changes that the authors hope will bring the office into better compliance with its legal obligations. These changes include increasing the number of asylum officers and overhauling supervisory staff. The office has also added a “section chief” who is tasked with ensuring that asylum officers make legally correct decisions, rather than decisions that respond to pressures from supervisory asylum officers. While these developments are certainly encouraging, the troubling fact remains that practices at the Boston Asylum Office have diverged significantly from the requirements of U.S. and international asylum protections. To ensure that asylum seekers in New England receive the protection to which they are entitled, continued monitoring of data and the practices at the Boston Asylum Office remains necessary.
The founding purpose of the affirmative asylum system was to create an adjudication process grounded in the humanitarian principles of refugee protection that would allow for the fair and expeditious resolution of asylum seekers' claims. The system is not living up to that promise and, as a result, the United States is not living up to its obligations under domestic and international law. Meanwhile, all actors within the system are being harmed: the overwhelmed asylum officers who do not have sufficient time to devote to deciding these consequential claims; the asylum seekers who face uncertainty, family separation, and despair during years of waiting; and the immigration practitioners whose ability to assist their clients is hampered by a broken system. The authors sincerely hope that this Article will spark further investigation and reform that will bring us closer to the ideals upon which our system was built.
Professor Anna Welch is the Co-Director of the University of Maine School of Law's clinical programs and the Founding Director of the Refugee and Human Rights Clinic.
Sara Cressey is a Visiting Professor teaching in the Refugee and Human Rights Clinic.
