Last time, I wrote about the Dream 9–nine Dream Act activists who were detained at the border when they tried to enter the U.S. without permission. They were released from detention after DHS determined that they had a credible fear of persecution in their country of nationality, Mexico. The burden of proof for determining whether an alien has a credible fear of persecution is relatively low (lower than the burden of proof to receive asylum). Essentially, if they tell the Asylum Officer that they fear persecution in their home country based on race, religion, nationality, particular social group or political opinion, they will “pass” the interview and, very likely, be released from custody with an order to appear before an Immigration Judge who will later decide their asylum claim. The danger is that aliens who can legitimately (or fraudulently) show a credible fear of persecution, but who have little chance of receiving asylum, will overwhelm the system. That has not really been a major problem in the past. But as Don Ameche says, “Things Change.”

Here are some recent statistics from the Department of Homeland Security:

So you can see that over the last several years, the number of credible fear cases has been steadily rising, but this year, FY 2013, there has been a significant increase (and remember that FY 2013 is not yet done–these statistics only cover the first three quarters of the year). The numbers look even more dramatic when we look at FY 2013 month by month:

Comparing October to June (the most recent month where statistics are available), you can see that the monthly numbers have more than doubled. While this is pretty dramatic, remember that these numbers are for cases completed; not for new cases. It seems that DHS has shifted resources to the credible fear arena, so it is certainly possible that some of the increase is explained by DHS completing more cases. Nevertheless, something is clearly going on. So what is it?

The most obvious explanation (and one that other commentators and I have discussed before) is that escalating violence in Mexico is driving people to the U.S. But this appears not to be the case. If you look at the top five source countries for credible fear applicants, Mexico has been consistently either number 4 or number 5, and for the last three months (April to June), it has dropped off the list. A recent report from Fox News claims that Mexicans are crossing in large numbers and claiming that they have a credible fear of persecution. While Fox is not always the most reliable source (and their report has been called into question), the report is from last week, and so we won’t have the DHS statistics for a couple months. It would not be too surprising if violence in Mexico is one reason for the increasing number of credible fear cases, but–at least based on the statistical data we have now–that does not seem to be a factor.

Another, more likely, explanation is that all the talk of immigration reform is spurring people to come to the U.S. in the hope of taking advantage of any “amnesty.” The smugglers who encourage people to come illegally to the United States are not stupid. My guess is that they are convincing their “clientele” that anyone who reaches our country prior to the reform will obtain residency. This is almost certainly false (even assuming that some type of bill passes), but that does not stop unscrupulous smugglers from using the immigration reform debate as a selling point. And why not? We are already seeing organizations in the U.S. trying to make money before the reform has even passed (check out this website, which purports to know what the reform will be, what the fees will be, and will charge you a mere $3,000.00 + $2,500.00 in fees to Get Started Now!).

Further evidence that smugglers are driving the increase in arrivals can be found by examining the source countries. For FY 2013, the top three source countries were El Salvador, Guatemala, and Honduras. The numbers from all those countries have increased significantly from October 2012 to June 2013: El Salvador went from 586 per month to 1,410 per month, Honduras went from 435 to 815, and Guatemala went from 308 to 606. Another country, India, did not appear on the top five list until March, when it debuted at number 4 with 174 credible fear interviews. By June, the last month when data is available, India had moved to the number 3 spot, with 741 arrivals (AILA members can see all these stats here). Compare this to FY 2012, when a grand total of 377 Indian nationals were granted asylum. To me, the sudden surge from multiple countries indicates that “pull” factors (i.e., the immigration reform debate) are playing a larger role than “push” factors (problems in the source countries). 

The increasing number of people arriving in the United States and expressing a credible fear of persecution is straining the entire asylum system (the same officers who adjudicate asylum cases also do credible fear interviews). At my local Asylum Office (Arlington, VA), for example, the interview process has basically ground to a halt.  I have over 25 asylum seekers waiting for interviews, and only one case scheduled for an interview (which was set for Rosh HaShana–thanks a lot, ZAR). So, is this the end of the U.S. asylum system as we know it? I will discuss that in the next posting.