Last time, I wrote about the influx of credible fear applicants and how this is straining the asylum system all across the U.S. Since then, I’ve communicated with attorneys in different parts of the country, and they are confirming that Asylum Offices are interviewing very few asylum applicants anywhere. Instead, they are focusing on credible fear interviews. This means that applicants (including many of my clients) are stuck in what appears to be an indefinite limbo. Thus, the question: Is this the end of the asylum system as we know it?

I have never been accused of being an optimist, but I think the pretty clear answer here is “no.” Or, maybe more accurately, “no, but…” Here’s why:

First, the Asylum Offices are in the process of hiring significant numbers of new officers. It takes time to train the new hires, but even so, we should start seeing their impact within the next six months. In addition, the rumors I’ve been hearing indicate that the Asylum Offices expect to begin shifting resources back to asylum relatively soon (I’ve heard various dates, including October 2013 and January 2014).

Second, the influx at the border will eventually slow down. If my theory (discussed in the prior posting) is correct and the new arrivals are being drawn here by the possibility of immigration reform, that “pull” factor will eventually go away. Either reform will pass or it will be killed by House Republicans. Once the issue is resolved, the added incentives it creates will likely disappear.

Third, and possibly most important, asylum is the law of the land, and there is nothing on the table to change that. Although there are certainly people and groups who would like to curtail or eliminate the asylum program, there really is no organized movement to change the law.

All that being said, I don’t expect that the current problems signal the end of asylum as we know it. However (and here’s the “no, but…” part), I suspect that the current problems will lead to a “new normal” in the asylum system. I also suspect that this new normal will not be as good as the old normal.

For one thing, there is some (disputed) evidence that aliens arriving at the border are becoming more sophisticated about making credible fear claims. Thus, the new normal might involve more resources devoted to credible fear interviews and less devoted to asylum cases (since Asylum Officers currently adjudicate both types of cases). Most likely, since many credible fear applicants are detained (at government expense), DHS will do the fiscally responsible thing and prioritize the credible fear cases. This could lead to increased waiting times for asylum seekers.

In addition, even if the credible fear caseload were resolved today, there would still be a large backlog of pending asylum cases to work through. Assuming no further disruptions, it will probably take years to interview and decide all the backlogged cases. And of course, new cases are coming in all the time.

Also, the world situation has been conspiring to increase the number of people seeking asylum in the U.S. Violence in Mexico is ever on the increase. Our disengagement from Iraq and Afghanistan has caused many people who worked and fought with us to flee for their lives. War in Syria and trouble in Egypt have created new refugee flows.

Finally, legislative and attorney-driven changes in the law have expanded the categories of people eligible for asylum–these days, asylum can be granted to victims of forced family planning, victims of FGM and domestic violence, people persecuted due to their sexual orientation, and people subject to forced marriage. I believe most of these changes are positive and life-saving, but when the number of people eligible for asylum expands, the number of people applying for asylum will likely go up. This further burdens the system. 

All these factors point to a future where asylum cases are adjudicated more slowly than before. So while I don’t believe we are witnessing the end of asylum as we know it, I do think the new normal will be a more difficult environment for people seeking asylum in our country. In the third part of this series, I will discuss some policy responses to this new situation.