Asylum seekers are individuals who flee to other countries to find sanctuary from the persecution suffered within the borders of their home countries. The U.N. High Commissioner for Refugees estimated that by mid-2021 there were nearly 4.4 million individuals actively seeking asylum worldwide, and the most recent data available surprisingly suggest that the United States granted asylum to only 31,429 persons in 2020.
The asylum system that is with us today was created when Congress enacted the Refugee Act with the goal of “respond[ing] to the urgent needs of persons subject to persecution in their homelands” and “provid[ing] a permanent and systematic procedure for the admission to this country” for refugees and asylum seekers. Despite what may have been the best of intentions, courts and scholars today recognize that the U.S. asylum process “is in tatters.”
Although there are two methods by which an individual can gain asylum in the United States, this Comment principally concerns itself with affirmative asylum—the process by which a foreign national affirmatively applies to the U.S. Citizenship and Immigration Services (USCIS) for asylum. At the beginning of 2022, there were 196,714 affirmative asylum claims pending, and many applicants have waited in a state of legal limbo for over five years to receive a decision on their claim. To escape the indefinite queue, some have started bringing claims of unreasonable delay under the Administrative Procedure Act (APA) to federal courts.
Because there are groups of asylum seekers who may be especially harmed by multiyear delays in adjudication, this Comment undertakes two separate but related tasks. First, it assesses whether the avenue for relief available to advocates and asylum seekers—federal court litigation—is actually viable for its purported ends. This Comment concludes that it is not. Second, it proposes a novel agency-side adjudicative mechanism, implemented through artificial intelligence technology, to more adequately provide reliable relief to especially vulnerable asylum seekers. The proposal offers a sketch of the new mechanism, wrestles with how artificial intelligence may be incorporated into it, and finally explores how the transparency and accountability of the agency’s automated decision-making may still be attained through current administrative law doctrines.