Saving the Asylum System

Concerns of abuse are understandable, but the fundamental problem doesn't lie within the asylum system. Rather, the asylum loophole is an unintended consequence of severe restrictions that make it exceedingly difficult for lower-skilled immigrants to enter the country legally.
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Broad immigration reform may have stalled but Rep. Goodlatte (R-VA), Chairman of the House Judiciary Committee, is considering reforming the asylum system. He recently said, "Our immigration system should be generous to those persecuted around the globe, but we must also ensure our compassion isn't being abused by those seeking to game the system." Goodlatte and others are on a fact-finding mission that will shortly lead to legislation.

A recent surge in asylum seekers and fears that many of them are fraudulent has sparked calls for reforming America's asylum system. Asylees who claimed they had a credible fear of returning to their home countries jumped from 5,369 in 2009 to 36,035 in 2013 -- an almost six-fold increase in four years. In 2013, 76 percent of these claims were made by unauthorized immigrants apprehended while crossing the border -- which can explain most of the increase in claims since 2009.

Making such a claim starts a long legal process that allows many unauthorized immigrants claiming asylum to work legally in the United States for years on a de facto work permit. This is an effective loophole that is growing in popularity but reformers must be careful not to close off this vital humanitarian safety valve.

From independence to the 20th century, America was the world's safe haven for religious refugees. But in 1921 the federal government imposed the nation's first immigration quotas, removing the last hope for many millions of people seeking to flee dictatorship, war, and genocide. Those restrictions led to the U.S. government shamefully turning away ships full of German Jews fleeing Nazi Germany.

If everything is done right, asylum seekers show up at a port of entry and ask for asylum. They are then interviewed by an asylum officer and if their fear seems credible -- meaning that there is a "significant" chance that their claim is legitimate -- they are detained. Once in detention, if they are determined not to be a security or flight risk, then the asylum applicant can be released into the United States to await his or her hearing.

If the applicant's claim is approved, he or she must then get a hearing before an immigration judge -- which can take years, but the asylum applicant can be paroled and work during that time if he or she isn't a flight or security risk. When the case finally comes to court, the applicant must prove having a well-founded fear of future persecution because of race, religion, nationality, political opinion, or membership in a particular social group in his or her home country.

However, some unauthorized immigrants claim asylum status after being apprehended while trying to enter illegally, which puts them in to the asylum system along with those who applied at a port of entry. To close that loophole, some members of the House Judiciary Committee will likely propose raising the standard in the first interview to require the asylum seeker's claims to be more likely true than false before proceeding to the second interview.

Concerns of abuse are understandable, but the fundamental problem doesn't lie within the asylum system. Rather, the asylum loophole is an unintended consequence of severe restrictions that make it exceedingly difficult for lower-skilled immigrants to enter the country legally. The asylum loophole problem could be resolved by creating a low-skilled guest worker visa program to channel would-be unauthorized immigrants into the legal system -- removing the incentive for some of them to make dubious asylum claims.

Another way to relieve the pressure on the asylum loophole is to differentiate between asylum claimants who tried to enter unlawfully, and thus have a higher probability of filing fraudulent claims, from those who applied at a port of entry. Individuals apprehended by the Border Patrol who then seek asylum status could be paroled, electronically monitored, and levied a large fine to be paid within one year. Raising the cost for illegally entering incentivizes honest asylum seekers to go through ports of entry.

Legal behavior should be rewarded. Asylum seekers who apply through a port of entry should also receive their work permit within a brief period of parole, ideally a week, instead of the current 180 days. To protect U.S. taxpayers, asylee access to federal welfare benefits should also be reduced or eliminated out right. The amount of asylee welfare use is unknown but likely a small fraction of the roughly $30 billion of means tested welfare benefits annually spent on non-citizens. Regardless of the amount, taxpayers should not be forced to foot that bill, especially when churches, charities, and other institutions are more than capable of filling the gap.

The asylum system is a small but important part of our immigration system.

Under today's asylum rules, the pilgrims would probably not pass the first stage of interviews because they were relatively unmolested in the Netherlands. Any proposed reform to the asylum system that would deny our ancestors the right to settle here should be rejected. In the meantime, reforms should be able to reduce fraud as well as keep the door open for those fleeing tyranny.

Alex Nowrasteh is the immigration policy analyst at the Cato Institute.

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