After the Taliban regained control of Afghanistan in August 2021, the US took on the large-scale resettlement of Afghans on an ad-hoc basis. This occurred when channels of US asylum were at high levels and the backlog in immigration courts exceeded 1.4 million. This bottleneck has relevance for resettled Afghans, as most are admitted on Humanitarian Parole, granting them a temporary two-year-status in the US. Afghans who cannot adjust their status within two years through available legal relief, such as family reunification, may eventually need to apply for asylum to stay in the US. Therefore, many resettled Afghans may soon find their prospects of remaining in the US in limbo.
The current US asylum situation is similar in some ways to that of Germany where, between 2013 and 2018, over 1.8 million people, many of them from Syria, applied for protection. Initially, German authorities were unprepared to manage what was a historic number of arrivals and applicants. In September 2016, Germany’s Office for Migration and Refugees (BAMF) faced more than 579,000 pending protection cases. Looking back at some of the key initiatives undertaken by the German government to improve the country’s protection system can help guide the US efforts.
Scaling up processing capacities necessitates enhanced training and quality control
In August 2021, the US Department of Homeland Security (DHS) and Department of Justice (DOJ) put forward ideas on how to transform the country’s overburdened asylum system. As part of an effort to speed up asylum processes, which is urgently needed given the high numbers of apprehensions along the southwest border, the DHS/DOJ-proposal seeks to strongly increase the number of asylum officers, which in 2020 was over 800. The proposal also seeks to extend the role of asylum officers in adjudicating defensive asylum cases to alleviate immigration judges.
The situation DHS faces is reminiscent of BAMF’s in the last decade. BAMF was understaffed as arrivals in Germany began to grow in 2014. BAMF and others warned the government of a lack of case-processing capacities, which was later amplified as numbers grew massively in 2015. It added thousands of staff—in contrast to just 3,000 at the end of 2015, the BAMF expanded to more than 10,000 by October 2016.
While the increase of the BAMF’s processing capacities was a necessary response to an unprecedented situation, it sometimes compromised the quality of BAMF’s decision-making. Under the scrutiny of public pressure, new staff onboarded at a high pace: Between August 2015 and February 2017, approximately 3,000 new asylum officers were hired. However, in hundreds of cases, this did not allow adequate time for comprehensive job training needed by the new officers to make informed and constitutional decisions. An open letter by two BAMF staff committees pointed out that some employee transfers from non-asylum related federal agencies received as little as 3-8 days of training—rather than the usual three months of job training—before working protection-related cases.
Currently, US asylum officer training involves multi-week courses, including, for example, the Asylum Officer Basic Training Course (AOBTC) focused on asylum adjudications, which includes instructors from non-governmental organizations, law schools, and the United Nations High Commissioner for Refugees (UNHCR).
A key takeaway from the German experience is that the US will need to withstand public pressure as it carefully assesses its training capabilities and quality assurance as it onboards new staff in larger numbers. This is vital from an ethical point of view as asylum officers make decisions that affect applicant’s lives. It is also important given that misguided decision-making by asylum officers may lead to a rise in appeals, which would be counterproductive (see below). Finally, while a proposal to drastically increase the number of asylum officers is warranted given the current state of asylum processing, the US could benefit from foresight in terms of flexible staffing models to be responsive to both extraordinary and ordinary times of asylum applications.
Streamlined asylum procedures may increase appeals
The proposed rule by DHS and DOJ employs the term “streamlining” to refer to the need to make asylum procedures, some of which may currently take several years, more efficient. According to DHS, DOJ and others, it is critical that asylum officers decide on defensive asylum cases, which include individuals who crossed the border without authorization. Currently, asylum offers only decide on affirmative asylum cases, which are claims by persons who entered with a valid US visa.
At the moment, asylum officers assess defensive cases only through an initial credible fear interview. Immigration judges ultimately rule on these cases in a second step, which usually occurs years later. Having both the credible fear screening and the final decision in the hands of the asylum officer is meant to simplify the asylum process and provide much-needed relief to immigration court judges.
Like in the US today, in 2016, Germany urgently needed to speed up its case processing procedures. At that time, an application for protection in Germany—from arrival to final decision—lasted, on average, over a year. To reduce processing time, BAMF implemented a prioritization process focused on persons from countries with either very high or very low rates of successful applications—both were assumed to be relatively quick to decide (the vast majority of Syrian applications, for example, were decided positively). Aiming to accelerate the speed of case processing but also, when relevant, removal procedures, BAMF shifted to processing prioritized protection cases in newly founded arrival centers, where all steps of the prioritized application process were supposed to occur in as little as two-three days.
At least on average, in 2017 and 2018, this goal remained theoretical at best. In 2018, the average processing time of cases decided in arrival centers was over six months long. At the time, this was barely faster than the average case processing time in all other facilities. And there were other limitations: Processing in this way made it difficult for those in arrival centers to obtain legal advice as they prepared for their application or case interview. An evaluation of arrival centers in 2017 showed that only one-quarter of all applicants received legal advice before applying for protection and 40 percent received legal advice ahead of their case interview. While there are many reasons as to why asylum applicants file appeals against BAMF decisions, the Office’s efforts to streamline asylum coincided with a rise in appeals as well as a rise in successful appeals. In September 2018, there were more than 323,000 backlogged protection appeals in German courts.
The proposed DHS/DOJ attempt to streamline defensive asylum claims is intended to benefit both applicants and immigration courts. Based on the German experience, however, the proposed changes can also contribute to rises in appeals, especially if sped-up procedures compromise an applicant’s access to legal services and/or representation. A rise in appeals is also likely given that for the most significant US applicant groups, which in recent years were Guatemalans, El Salvadorans, and Hondurans, faster procedures will – unlike for Syrians in Germany – mean faster rejection and deportation. So appeals may also be used to avoid removal, especially when appeal cases become backlogged and waiting times are long. To some degree, such changes may compromise the central goal of the proposed ruling: to provide relief to US immigration judges.
Flank streamlined asylum processes with improved integration opportunities
In 2015 and 2016, several German responses were restrictive. Germany added three countries in the Western Balkans as safe countries of origin. Germany also supported the EU-Turkey-Agreement and enhanced its detention and removal procedures.
At the same time, however, Germany undertook serious investments in integration measures, for those who received protection as well as for applicants with high prospects for receiving protection. While still in the application phase, applicants became eligible to attend integration courses and had early access to the German labor market. Germany also experimented with alternative pathways to its labor market for job seekers from the now six Western Balkan countries, which it deemed “safe countries of origin.” In the years leading up to the 2015-16 displacement crisis, many individuals from those countries had applied for protection in Germany but the vast majority did not succeed. While far from perfect, this solution offered to reroute at least some individuals from the Western Balkans into legal labor-migration channels.
Regarding (early) integration, U.S. asylum applicants are in a difficult spot. Currently, most applicants are deemed ineligible for asylum. Based on the 2020 decisions made in US immigration courts, more than 80 percent of those stemming from the three northern triangle countries are not eligible. At the same time, however, approximately three-quarters of the 2020 applicants from China and about half of all applicants from Venezuela were granted asylum. While early labor market access is not suitable for most applicants, it may be worth contemplating respective privileges for applicants with high probability for receiving asylum, especially when, as it is currently the case, procedures take several years to be decided. While exceptions exist, asylum applicants may currently only apply for employment authorization 365 calendar days after filing their complete application.
Most importantly, however, the US should also improve its access to available benefits and services for asylees, who, at the moment, do not receive the integration supports that resettled refugees receive.
Timo Tonassi, ISIM Affiliate (Timo has worked as a researcher at the The Expert Council on Integration and Migration (SVR) in Berlin, Germany. Before, he was a Migration Research Fellow at The German Marshall Fund of the United States. Timo holds an M.A. from Humboldt University of Berlin and a Ph.D. from Free University Berlin.)