How to End the Backlog of Asylum Cases? Take Them Out of the Courts

This is the third in the series Courting Injustice, which reveals how US immigration courts deny many deserving asylum-seekers a fair hearing.

In late summer 2022, a group of about 30 Haitians arrived at Portland International Airport with nowhere to go.

They were the first of as many as 40,000 immigrants who have come to Oregon since then, a surge so unexpected that it triggered an emergency response by the state. Officials quickly converted an old Ramada Inn near the airport into living quarters for hundreds of new arrivals. Private aid organizations chipped in with cases of soap, shampoo and deodorant.

The newcomers created a different sort of resource problem for Stephen Manning, founder of Innovation Law Lab, one of Oregon’s largest immigrant legal aid groups.

Even with 18 lawyers, the group had nowhere near enough to help the thousands of people who suddenly wanted to file for asylum. To do that, they must formally claim that they face persecution in their home countries and then support that claim in immigration court. “The actual number of immigration legal providers in Oregon who have asylum or removal-defense expertise is 98,” Manning says. “That comes down to 0.002 lawyers per person who needs one.”

So Manning’s team set up a free asylum clinic three times a week. Participants get a quick introduction to US asylum law and individual interviews to identify complicated cases. The process typically takes about five hours. Then the applicants walk their paperwork to the Edith Green-Wendell Wyatt Federal Building 10 blocks away.

The legal clinics have allowed hundreds to begin the process of starting new lives in America, but they also reflect the country’s broken immigration system. As the US has restricted almost every other legal path for coming to and staying in the country, a record number of people have turned to the remaining best option: claiming asylum, even if their cases don’t qualify or are found to be not credible.

All those applications, in Portland and across the country, have buckled the immigration courts. It took decades for the backlog in the courts to reach 672,000 cases, which it did in 2018. Another 672,000 were added to that backlog in just the 12 months that ended September 2023, according to Donald Kerwin, an immigration researcher at Emory University. Almost half were asylum cases.

With the courts’ dockets hopelessly clogged, studies have shown that the long delay in determining asylum cases encourages more border crossers to file applications, including many whose claims won’t bear out. They may ultimately be returned to their country of origin, but at least for a time, they can work legally in the US.

“I don’t think there’s any way in hell the courts can ever manage this without some really dramatic changes,” said Denise Gilman, who specializes in immigration law at the University of Texas at Austin.

The shambolic situation has fueled a push to fundamentally rewire the US immigration system so that asylum claims, both the most and least viable, are handled in months rather than years. It’s a challenge other countries have wrestled with in recent years, learning hard-won lessons that might be useful for US policymakers.

The solution gaining support among a long list of researchers, think tanks, law professors and members of Congress from both parties: Take asylum cases out of the immigration courts, in large part or entirely. Instead, they would be handled by an expanded corps of asylum officers who would be specially trained in the crisis conditions of the countries where most asylum-seekers originate.

The Senate border overhaul unveiled in February contained the basic elements of that kind of big reform. It allocated almost $4 billion to greatly expand the number of such asylum officers and create a new appeals body separate from the courts.

“It was called a border bill, but in fact it would have fundamentally changed the asylum system,” said Kathleen Bush-Joseph, a lawyer and policy analyst with the Washington, DC-based Migration Policy Institute, which works closely with Congress to craft immigration policy.

The proposal died when Donald Trump, the Republican presidential nominee, came out against it. And he has vowed to shut down asylum for anyone crossing the border. By contrast, Vice President Kamala Harris announced at the Democratic convention in August that she would sign the bill if a future Congress passed it, adding her voice to those who favor taking the courts out of the process.

Yet the proposal endorsed by Harris still has the potential to go badly wrong, according to experts who have studied it. Over the past decade, safe-haven countries have raced to crack down on asylum-seekers or tried to keep them from reaching their territory—expensive policies that have often proved ineffective. Getting reform right will depend on a willingness to learn from other countries’ mistakes and successes, says Daniel Ghezelbash, an academic who advises the Australian government and who has researched asylum reform efforts around the world.

Together, they hold a pretty clear lesson. “The only way to increase efficiency,” Ghezelbash says, “is to pay more attention to fairness.”

The US is one of the few countries that give a courtlike system such a central role in determining the fate of asylum-seekers— and that was not by design.

The 1980 Refugee Act, which codified the asylum process, was primarily fashioned to resettle refugees displaced by distant crises. A separate asylum process was tacked on, and it required anyone seeking the status to already be in the US or at an official port of entry. Congress thought the asylum piece of it would apply at most to 5,000 people a year; lawmakers had in mind Russian ballerinas who didn’t want to return to Communist totalitarianism, not masses of asylum-seekers arriving at the southern border.

In the 1990s, changes in the asylum process set off a chain of unintended consequences. The Immigration and Naturalization Service, the Department of Homeland Security’s predecessor, set up a small asylum division intended to handle most claims. Then Congress, grappling in 1996 with a surge in migrants crossing the border, passed a tough new law called the Illegal Immigration Reform and Immigrant Responsibility Act.

The statute gave border authorities extensive new powers, including the ability to immediately deport migrants without the delay—or due process—of a lot of court hearings. But it created one important exception: Anyone with a well-founded fear of harm or persecution could have their deportation case heard by an immigration judge.

This stipulation, in effect, merged the country’s asylum system with its growing deportation apparatus. That opened the door through which, almost three decades later, hundreds of thousands of asylum-seekers now pass into immigration courtrooms around the country.

Those courts, policy experts and asylum-seekers agree, are badly suited for the role. “Immigration courts are hearing these cases because people are crossing the Southwest border improperly, and asylum becomes a defense against deportation,” said Doris Meissner, who headed the INS in the 1990s. “That’s the system that has gotten totally and entirely bogged down.”

A core problem with the immigration courts is readily apparent: There’s no way to expedite the asylum cases most likely to succeed, or to quickly dispose of those with little merit. Hearings are set based on the next opening on the court’s calendar, which at this point is often many years away.

For some, those delays are a chance to gain a foothold in a country where they hope to make their home. For others, they create years of uncertainty and vulnerability.

Until July 2021, Mohammad Zia Hamdard was governor of the Daykundi province of Afghanistan, a ranking official in the US-allied government famous enough to have his own Wikipedia page. He was also well known to the Taliban, which hunted him and his family in the chaotic weeks after the regime fell.

When the US flew more than 75,000 Afghans to safety as part of Operation Allies Refuge, Hamdard and his family weren’t among them. With Taliban soldiers asking neighbors if they knew his whereabouts, he fled to Iran with his wife, Masuma Tawasoli, and their two young children—the beginning of a long journey that eventually ended in Portland.

As they fled, the parents temporarily split up, with Tawasoli and the children traveling first. She remembers arriving in the Pacific Northwest with little sense of where she was. The destination had been picked by an immigrant aid group after they crossed the border near San Diego, the culmination of a 40-day trek from Brazil, across the spine of Central America and through the ganglands of Mexico. For the first three months, the family stayed in a four-bedroom house in Portland with several other families, 26 people in all. Even using the shower had to be elaborately scheduled. Then they moved to the converted Ramada Inn, where volunteers provided food and other necessities. They had no other way to eat or pay rent, because asylum-seekers have to wait six months before they are permitted to apply to work legally in the US.

The couple is grateful for the help they’ve received. But the prospect of waiting until 2029, the earliest date a judge will decide Tawasoli’s case—the first of the two parents—is disheartening. “My daughter has nightmares nearly every day. My kids are not doing well. I’m not doing well,” Tawasoli said recently, speaking through a Dari translator. She often finds herself asking, “How are we going to survive?”

The years of uncertainty the family faces were locked in as soon as they crossed the border without permission, giving the immigration courts jurisdiction over their case.

Those Afghans lucky enough to be part of Operation Allies Refuge—some desperately crowding onto planes amid the chaos of the US withdrawal—encountered a very different part of the asylum bureaucracy. This alternate system was established in the 1990s for people who were already in the country legally, and some experts believe it points to a better way of handling such cases. It has no judges or prosecutors, because the process is designed to be non-adversarial. Homeland Security officers, trained in the conditions the asylum-seekers are fleeing, gather evidence and make asylum decisions.

The failed Senate border overhaul aimed to rewire the US asylum system based on that model, and it provided money to hire 4,300 new DHS asylum officers. (The bill would restrict the ability to claim asylum when the number of border crossers is high; some experts who otherwise support the reform believe that provision may violate international law.) In such a system, a final asylum decision ideally would take no more than six months.

The changes are intended to undo the damage that Congress did in the ’90s, but experts say that lessons from other countries show that the US can’t stop there.

From 2009 to 2013, at least 30,000 refugees reached Australia by sea. Their journey often took them from war-torn homelands such as Syria, Afghanistan and Iraq to the southern islands of Indonesia, then by smuggling boats to the remote areas of Australia’s northern coast.

In 2014, Australia set up a fast-track procedure to rapidly decide their claims. It established a special appeals board to review decisions made by asylum officers. The country’s newly elected conservative party dropped references prioritizing fairness and justice from the board’s mandate. Reviewers couldn’t consider new evidence or hear witnesses—important due process protections built into the original system.

“It was a complete disaster,” said Ghezelbash, who is director of the University of New South Wales’ Kaldor Centre for International Refugee Law. While the asylum reviews swiftly moved through the process, decisions were riddled with mistakes. Australia’s federal courts eventually overturned 37%, he said, among the highest error rates in administrative law found anywhere in the world.

In the end, the fast-track cases took significantly longer to finalize than those going through the normal process, Ghezelbash found in his research. It was an object lesson in the costs of limiting due process.

“When people haven’t had a fair hearing, they are far more resistant to returning voluntarily than when they have”

By contrast, Switzerland in 2019 shortened the time it took to decide most cases from around four years to fewer than five months. The Swiss succeeded where other countries failed by making a pair of crucial changes: mandating fast timelines that asylum officers needed to meet while also providing each asylum-seeker with legal assistance paid for by the state. Providers are given a set amount to advise each asylum-seeker from their initial hearing through any appeal.

In its earlier effort, Australia had reduced government subsidies for legal services to migrants on the theory that giving them more opportunity to exercise their rights would lengthen the process. Switzerland went in the opposition direction and got better results.

Another important part of the Swiss model is that it doesn’t treat every case equally. The country set up a triage system starting with an initial review that separates the strongest and weakest cases from those that raise legal nuances or require more evidence gathering. The first group—by far the biggest share—are fast-tracked while the remaining go through a lengthier process that can take up to a year.

“One-size-fits-all is a very blunt way of assessing claims and allocating scarce resources in a system,” Ghezelbash said.

With the legal help, the rate of approval stayed roughly the same, while the time it took to process applications fell to a few months. In other words, the Swiss had come up with a way to be both fast and fair. The change has allowed Switzerland to do what almost no country has successfully managed: persuade failed asylum-seekers to go home when their applications are denied. The country now has one of the world’s highest rates of voluntary returns, Swiss officials say.

“It turns out that when people haven’t had a fair hearing and haven’t had an ability to fully put forward their case, they are far more resistant to returning voluntarily than when they have,” Ghezelbash said.

The US, of course, is not Switzerland—or even Australia. The scale of asylum-seekers is exponentially greater in the US, and big differences exist in the countries’ governing systems and political cultures.

Antipathy in Congress to the funding of legal assistance for migrants goes back decades, for example. Lawmakers in 1974 set up the Legal Services Corporation, which uses federal funds to provide legal aid to the poor in civil cases, but they’ve shown no interest in doing the same for migrants.

The idea was just as controversial in Switzerland, participants in the reform there say. But state-funded legal aid came to be seen as a necessary trade-off: If you have only a short time to accurately decide cases, it seemed important that asylum-seekers present their best case immediately. The theory turned out to be right.

Meissner, the former INS commissioner, says she has come to the same conclusion. Now a director at the Migration Policy Institute in Washington, she wrote an influential 2018 report credited with first proposing the asylum reform that ended up in this year’s Senate proposal.

She describes the need to provide asylum-seekers with legal assistance as “hugely, hugely important” and “a severe limitation of our current system.” But it’s not in the bill Harris endorsed. The proposal funds legal assistance for children seeking asylum, a change that Meissner calls “notable and interesting.” But kids make up a small fraction of asylum cases. Failing to provide such aid to adults could bog down the process, undercutting the main purpose of the reform.

Neither the Harris nor Trump campaigns responded to requests for comment for this story.

Finding a way to provide asylum-seekers with the legal assistance they need will be hard. Triaging cases based on their merits could be much easier. But it depends almost entirely on moving the first decision on asylum cases out of the immigration courts, experts say.

The approach recognizes that people fleeing from similar circumstances should be protected equally. That would be a big shift from how it works in the US immigration courts, where asylum-seekers submit reams of documentation about their home countries, often supplemented by testimony from specialists in those regions, no matter how well known the conditions they are fleeing.

“Once you establish a person’s identity and say, for example, the fact that they are Hazara from Afghanistan, then the process ends there,” Ghezelbash said, referring to an ethnic group targeted by the Taliban. “You can put your time and resources somewhere else.”

For Hamdard and his wife, such an approach would have given them a very different life by now. Tawasoli is indeed Hazara, a mainly Shiite ethnic group that the Taliban, who are Sunni, have brutally persecuted over the years, including an uptick in extrajudicial killings since the fall of Kabul, according to Amnesty International.

She is also a lawyer who advised the Interior Ministry’s gender section, another reason she’d be in danger in Afghanistan. And as a pro-Western former governor, Hamdard was in peril as soon as US troops left the country. The United Nations reported last year that the Taliban had murdered more than 200 former officials and members of the security forces.

Manning, who is handling the family’s case, believes they will eventually get asylum. But it’s not guaranteed. The Portland immigration court is more conservative than the progressive city where it’s located. Two of the court’s three full-time judges grant asylum applications at a rate below the national average.

“We came to America with that little hope, and we’re still chasing that hope”

With Hamdard’s case, there’s an additional complication. He crossed the border after May 2023. According to a rule passed by the Joe Biden administration, that means he may not be eligible for asylum at all. The rule is one of several the White House has enacted as Biden has sought to deter the wave of asylum-seekers entering the US.

Hamdard crossed with a small group of fellow Afghans. He remembers seeing a cluster of towering white windmills south of San Diego and being overcome with relief and joy. “It was so beautiful, and I felt such a thrill that we had made it,” he said through a translator. A Border Patrol truck pulled up. After discovering where they had come from, one of the agents welcomed them to America. The officer had served in Afghanistan and knew the perils the men faced to escape.

Recalling that moment, Hamdard realized those risks have yet to fully pay off. “We came to America with that little hope, and we’re still chasing that hope,” he said. “Whether it will take years or not, we don't have very much choice but to wait.” —With Sinduja Rangarajan

Read next: America Is Filling Notorious Former Jails With Asylum-Seekers