Outdated Regulations Cannot Handle the Spike in Asylum Claims

IRLI comment supports proposed rule, exposes flaws in current system

WASHINGTON—In a public comment filed with the Department of Homeland Security (DHS), the Immigration Reform Law Institute (IRLI) has endorsed a proposed rule by immigration officials to remove outdated regulations for asylum applicants.

The regulations at issue require, among other things, DHS to issue employment authorization cards (EADs) to aliens who have applied for but not been granted asylum within a strict 30-day deadline.

These regulations date back to a long-past era when only a small percentage of aliens detained at the border or ports of entry claimed asylum. This alien population has ballooned in numbers in recent years due to the tidal wave of illegal entries crossing the southern border.

“DHS persuasively describes three factors that have imposed major operational strains on the EAD issuance process that requires a change in regulation,” said Dale L. Wilcox, IRLI’s executive director and general counsel. “First is the massive growth in asylum applications and adjudication backlogs, which has grossly outpaced Service Center Operations’ resources. Second, DHS has been upgrading its anti-fraud controls through more centralized application processing and production of tamper-resistant documents. Third is of course the expansion in national security vetting requirements since the 9/11 attacks.

“In sum, the government today has a compelling need to extend adjudication and processing times for cases with potential eligibility issues discovered during background checks.”

But the apparent “straw that broke the camel’s back” and forced the government to drop these 25-year old deadlines was a lawsuit, Rosario v. USCIS, filed by anti-borders groups on behalf of some anonymous alien applicants. In late 2018 a federal district judge ordered the government to meet the 30-day limit for every applicant, by transferring however many immigration investigators were needed from work on other critical immigration applications and backlogs.  

“This is one more disturbing example of incompetent micro-management of immigration policy by an activist judge,” stated IRLI Senior Counsel Michael Hethmon.  “Not only has this shocking order disrupted and slowed the processing of thousands of immigration benefit requests for law-abiding immigrants, but the court sealed most of the case files from the public.”

Some anti-borders activists called on DHS to increase hiring and specialized training for EAD application examiners in order to keep the 30-day deadline in place. IRLI commented that these proposals show bad faith.

“By law USCIS must fund all its operations, including fraud and national security screening, through user fees,” noted Hethmon. “The anti-borders lobby hypocritically objects to paying fees to fund a very costly new corps of federal employees. Their real objective is to cause an already strained national system to break down and force the government to amnesty huge numbers of otherwise bogus asylum applicants into the United States.”

“IRLI will continue to investigate and identify the public interest at stake in these bureaucratic battles that are so difficult for citizens to monitor,” said Wilcox.

IRLI’s public comments were filed in response to the DHS notice of proposed rulemaking (NPRM), Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications, DHS Docket No. USCIS-2018-0001, published at 84 Fed. Reg. 47148 on September 9, 2019.

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]