Senate Republicans' Reform Proposal Would Make Asylum System Unconstitutional

Eliminating asylum review would violate Republican-driven Appointments Clause precedent

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On Monday, Senate Republicans released a proposal that would dramatically change the asylum system. As an immigration lawyer who represents asylum seekers, I find many of those proposals shocking. Some would likely violate U.S. commitments under post-World War II international law.

But one proposal would make our asylum system just plain unconstitutional. Senate Republicans proposed to “Prevent[] ‘Two Bites at the Apple’” by “[m]ak[ing] the denial of an alien’s affirmative asylum claim controlling when he later raises asylum as a defense to removal.” According to the working group, “[t]his prevents frivolous delays.”

It also sets up a massive violation of the Appointments Clause.

How Asylum Hearings Work

The proposal refers to the current system for hearing asylum claims, which has two pathways. When DHS starts an immigration court case to remove someone from the United States, that person may claim asylum as a defense. That type of asylum claim is commonly referred to as “defensive asylum” and will be decided by an immigration court judge (an employee of the Department of Justice’s Executive Office for Immigration Review).  

If a foreign national in the United States wishes to initiate an asylum claim on their own, however, they file an “affirmative asylum” claim with the Department of Homeland Security’s Office of Citizenship and Immigration Services (USCIS). A single asylum officer will conduct an interview with the applicant and decide the case. Although the applicant can have an attorney present, the attorney generally is not permitted to speak.

Most importantly, an applicant has no right to appeal a denial of their affirmative asylum claim within DHS. Instead, if the applicant has no other valid immigration status at the time of the denial, DHS will initiate a removal case in the immigration courts (in DOJ). At the removal hearing, the person (now called a “respondent”) can raise asylum as a defense and have the judge consider their claim.

Senate Republicans want to do away with this opportunity to raise asylum as a defense to removal after a denied affirmative asylum claim – “two bites at the apple,” as they say.

But this would eliminate any review of the USCIS asylum officer’s decision. Noncitizens within the United States have a right to due process of law, and removal from the country without an opportunity to challenge the determination of what may be a single GS-9 asylum officer (with administrative supervision) may violate the due process clause of the Fifth Amendment.

More obviously, under recent Supreme Court precedent resulting from a concerted conservative litigation agenda, the Senate Republicans’ proposal would almost certainly violate the Appointments Clause because it would transform asylum officers into unconstitutionally appointed principal Officers of the United States.

The Appointments Clause and the Fight over the Balance of Federal Power

The Appointments Clause of the U.S. Constitution, Article II, section 2, clause 2, has had an interesting career in the courts lately, initiated by jurisprudential conservatives who want to delegitimize federal agency action, including adjudication. The Appointments Clause says that the president

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That clause sets up two important rules: Principal officers of the United States have to be appointed by the president subject to advice and consent of the Senate; and “inferior Officers” can be appointed only by the president, a federal court, or the head of an executive agency (whichever Congress designates).

Conservatives have used these rules to unseat agency adjudication generally in recent years. In a series of lawsuits, plaintiffs who lost cases before federal agencies like the Securities and Exchange Commission or the Patent and Trademark Office have challenged those rulings under the Appointments Clause. According to those claims, the agency proceedings against them were illegitimate because the hearing officers acted as officers of the United States but were not appointed consistently with the Appointments Clause.

The Supreme Court has agreed, and agencies are still struggling to recover. In a case called Lucia v. S.E.C. in 2018, the Court held that Administrative Law Judges who hear claims of securities law violations are inferior officers, not mere employees of the government, for two reasons: (1) they serve on an ongoing, not temporary, basis, and (2) they exercise “significant authority” equivalent to that of federal judges. That meant that ALJs in the SEC could not simply be hired like other employees; they had to be appointed by the Commission (as the “Head[] of Department[]”). So all cases decided by unconstitutionally appointed ALJs were invalid until ALJs were reappointed.

In Lucia, at least there was a right of appeal the ALJ’s decision to the Commission itself, although the Commission could decline to review it and instead issue the ALJ’s decision as its own final order. The mere possibility that the ALJ’s decision might become final caused the Court to conclude that the ALJs were “officers” and had to be constitutionally appointed.

Eliminating immigration court review of an asylum claim would make the USCIS asylum officer’s decisions final in every case. In 2021, the Supreme Court held a similar system in the patent office unconstitutional. In U.S. v. Arthrex, the Court held that administrative patent judges within the U.S. Patent and Trademark Office were principal Officers because their decisions were not reviewed by a presidentially nominated and Senate confirmed officer. That meant any decisions made by those APJs were unconstitutional until they were appointed by the president and confirmed by the Senate (or until their powers were limited).

Asylum and Appointments

In the asylum context today, a decision denied by a USCIS asylum officer will be reviewed by an immigration judge when the government tries to remove the unsuccessful applicant. The immigration judge’s decision is appealable to the Board of Immigration Appeals, comprised of constitutionally-appointed inferior officers, and subject to direct review by the Attorney General, a constitutionally-appointed principal officer. Under this system, USCIS asylum officers may not exercise “significant authority” under Lucia so they may not require constitutional appointment.

But take away that immigration court review and it’s a whole different story.

If Senate Republicans want their proposal to survive constitutional scrutiny under Arthrex, one of two things would have to happen: Either the bill would have to include a right to appeal a denial of an affirmative asylum claim to the Secretary of Homeland Security, or the president will have to appoint asylum officers (all 1,024 of them) with advice and consent of the Senate.

The latter isn’t going to happen. The former would basically substitute a “second bite at the apple” (more traditionally called an “appeal”) within DHS for the existing review within DOJ.

So far, Senate Republicans have released only a one-page summary of their plan. They said that the proposals are “drawn from those found in H.R. 2,” but I don’t see any mention of making asylum officers’ decisions final or providing for an alternative DHS appeal in H.R. 2.

Even if Congress tried to resurrect this system by creating an internal DHS appeals process, due process would likely demand similar hearing procedures to those that already exist within DOJ. This would effectively move the immigration courts from DOJ to DHS. And that appears to conflict with Section 1101 of the Homeland Security Act of 2002, which fixes the Executive Office for Immigration Review within DOJ, not DHS.

Reinventing this wheel would only cause more chaos in the asylum system, not less. If Congress passes this particular proposal, immigration advocates in a heartbeat will seek to invalidate every asylum decision made by every asylum officer everywhere. Following Arthrex, that claim would appear almost unassailable. At best, Congress will have to create a whole new appellate hearing process within DHS and amend other laws to overcome the objections raised above.

If order is the goal, perhaps it would be more sensible to leave the system the way it is.