A FASTER WAY TO YES: Re-Balancing American
Asylum Procedures
MICHAEL KAGAN*
The United States asylum system, like many other asylum systems, is
under immense pressure to process asylum applications faster. The pri-
mary response to this pressure is negative, namely to deny asylum claims
quickly by categorizing them as manifestly unfounded. In the United
States, this is done through the “credible fear” process. This negative ori-
entation leads to a structural imbalance in which denials can be fast and
easy for the system, but approvals take time and extensive effort. Using
domestic and international comparative examples, this Article proposes
re-balancing the asylum system by establishing a process for expedited
approvals of clearly eligible asylum claims.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002
I. THE U.S. ASYLUM SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
A. ELIGIBILITY FOR ASYLUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
B. STANDARD ASYLUM PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
C. MANIFESTLY UNFOUNDED AND CREDIBLE FEAR PROCEDURES . . . . . . 1015
D. CONCEPTUAL UNDERPINNINGS OF EXPEDITED DECISIONMAKING . . . . 1021
II. GROUP-BASED STATUS: THE ALTERNATIVE TO INDIVIDUAL REFUGEE
STATUS DETERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
III. THE POSSIBILITY AND PRACTICE OF A MANIFESTLY WELL-FOUNDED
PROCEDURE IN THE UNITED STATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030
A. CONCEPTUALIZING EXPEDITED APPROVAL . . . . . . . . . . . . . . . . . . . . . 1030
B. INTERNATIONAL EXAMPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
* Joyce Mack Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of
Law. © 2025, Michael Kagan. My thanks to the Immigration Enforcement Workshop at Cardozo
University School of Law, organized by Lindsay Nash in November 2023, and the participants’ helpful
feedback: Adam Cox, Ingrid Eagly, Mary Holper, Eisha Jain, S. Deborah Kang, Eunice Lee, and Shalini
Bhargava Ray. The original genesis of this Article can be dated to discussions at the University of
Michigan Law School in 1999 or 2000 with my teacher, Professor James C. Hathaway (now emeritus),
who described the creation of “manifestly well-founded” procedures for refugee status determination in
Canada. This Article is based on the situation in asylum law and policy in the United States in 2024; it
does not take account of events after Donald J. Trump took office in January 2025.
1001
C. USCIS ADJUDICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033
IV. HOW AN EXPEDITED ASYLUM APPROVAL SYSTEM MIGHT WORK . . . . . . . 1035
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040
INTRODUCTION
Let me begin with a true story.
1
An Afghan woman fled Kabul in August 2021
with the U.S. evacuation. She had been the leader of a local women’s rights organi-
zation and carried with her documents from her work, including a smiling photo-
graph of herself standing with the former President of Afghanistan, who had just
been ousted by the Taliban. Suffice it to say, she would be in grave danger from the
Taliban—because she was a notable activist, and an outspoken and secular woman
who had associated with the prior regime. It would be difficult for a trained refugee
law expert to develop a case that more clearly established a well-founded fear of per-
secution, with all the essential elements of an asylum claim. It was well documented
with photographs and certificates. Plus, she had been through security screening by
American security agencies while waiting in Qatar, and was already living and
working in the United States legally, albeit on only a temporary legal status.
Yet, nearly two years after her arrival in the United States, no American immi-
gration official had reviewed the basic facts of her asylum case, which were lin-
gering with her paper application in a queue as she waited for an interview. When
she finally got an interview, an asylum officer spent an entire day examining her,
her husband, and her children, mostly about questions that were fully answered in
the paper application, with corroborating documents attached. Months later, she
was granted asylum, so this is a success story by the jaded standards of most im-
migration lawyers. An easy case with no real hiccups. And yet, this easy case
took years, including extensive time spent by the U.S. Asylum Office—including
the attention of a single officer for an entire day just to do the interviews—at a
time when the Asylum Office was straining to cover all the screenings and adjudi-
cations required by asylum-seekers reaching the southern border.
An easy case should not be so hard. The point of this Article is that the United
States can process and approve many asylum cases like this faster. And it needs
to, because this Afghan woman did not wait alone. In 2022, there were more than
1.5 million people waiting for asylum adjudication in the United States.
2
A Sober Assessment of the Growing U.S. Asylum Backlog, TRANSACTIONAL RECS. ACCESS
CLEARINGHOUSE (Dec. 22, 2022), https://trac.syr.edu/reports/705 [https://perma.cc/5NJX-J89Y].
By May
2023, the average asylum case in the United States took 4.25 years to adjudicate.
3
AM. IMMIGR. COUNCIL, B EYOND A BORDER SOLUTION 1–2 (2023), https://www.americanimmigrationcouncil.
org/sites/default/files/research/02.23_border_whitepaper_v6.pdf [https://perma.cc/5VLP-YN5W].
In November 2023, the backlog of cases in U.S. Immigration Courts exceeded
1. Certain identifying details altered to protect anonymity.
2.
3.
1002 THE GEORGETOWN LAW JOURNAL [Vol. 113:1001
3 million.
4
Immigration Court Backlog Tops 3 Million; Each Judge Assigned 4,500 Cases, TRANSACTIONAL
RECS. ACCESS CLEARINGHOUSE (Dec. 18, 2023), https://trac.syr.edu/reports/734 [https://perma.cc/
KM9G-EF68].
Such delays mean that people in danger of persecution wait in limbo,
usually with employment authorization but without access to other government
benefits.
5
Their cases often grow weaker while they wait, as both the evidence
and the urgency of their flight from danger becomes more remote. Their long-
term interests are seriously injured too. Because so much time has passed, they
should theoretically be close to applying for citizenship, not the mere right to stay
in the country, according to statutory timelines.
6
In the United States and around the world, one of the primary challenges to an
effective system for protecting refugees fleeing persecution is that it takes a very
long time to adjudicate asylum applications. In the best of times, this means that
governments must commit significant resources to operating a system for adjudi-
cating asylum cases.
7
See James C. Hathaway, The Global Cop-Out on Refugees, 30 INT’L J. REFUGEE L. 591, 593 (2018)
(noting “rich countries spend at least US$20 billion each year to fund their refugee reception efforts”); U.N.
HIGH COMM’R FOR REFUGEES, GLOBAL APPEAL 2025: IMPACT, FOCUS, OUTCOME AND ENABLING AREAS 42
(2024), https://reporting.unhcr.org/sites/default/files/2024-11/Global%20Appeal%202025%20-%20Impact%2C
%20Focus%2C%20Outcome%2C%20Enabling%20Areas.pdf [https://perma.cc/DFJ4-8WPH] (seeking
$213 million globally for U.N. refugee status determination procedures).
In the worst of times, this means that restrictionist critics of
asylum can complain that merely lodging an asylum claim can entitle a person to
live and work in the country for years while their asylum case waits for a final re-
solution.
8
See, e.g., David Frum, Why the GOP Doesn’t Really Want a Deal on Ukraine and the Border,
ATLANTIC (Dec. 12, 2023), https://www.theatlantic.com/ideas/archive/2023/12/republican-opposition-
ukraine-israel-aid-border-security/676315 (“The fundamental reason for America’s present border crisis
is that would-be immigrants are trying to game the asylum system. The system is overwhelmed by the
numbers claiming asylum. Even though the great majority of those claims will ultimately be rejected,
their processing takes years, sometimes decades. In the meantime, most asylum seekers will be released
into the United States.”); Editorial, Asylum Has Become a Parallel Immigration System. Here’s How to
Fix That, WASH. POST (Jan. 31, 2023), https://www.washingtonpost.com/opinions/2023/01/31/asylum-
immigration-parallel-system-solutions (“The backlog encourages people to make a dangerous and
expensive trip to the U.S. border, knowing that — even if their asylum cases are weak — they can live
and work in the United States for years pending a ruling.”).
In his 2024 State of the Union Address, President Biden complained
about the long delays in asylum adjudication, in apparently impromptu remarks:
[I]f we change the dynamic at the border—people pay these smugglers 8,000
bucks to get across the border because they know if they get by . . . and let into
the country, it’s six to eight years before they have a hearing. And it’s worth
the taking a chance for the $8,000.
9
Compare Full Transcript of Biden’s State of the Union Speech, N.Y. TIMES (Mar. 8, 2024), https://
www.nytimes.com/2024/03/08/us/politics/state-of-the-union-transcript-biden.html, with Read the Full
Transcript of Biden’s 2024 State of the Union Address, as Prepared for Delivery, CBS NEWS (Mar. 8,
2024), https://www.cbsnews.com/news/state-of-the-union-transcript-2024 [https://perma.cc/XH42-9NJ7]
(missing the quoted remarks).
4.
5. See infra Section I.D.
6. See infra Section I.D.
7.
8.
9.
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