Most asylum-seeking migrants arriving in New York City unlikely to be able to stay in U.S. legally

Most asylum-seeking migrants who have been arriving in cities like New York — some of whom the mayor wants to relocate to Long Island and beyond — aren’t likely to be allowed to stay legally in the United States, according to recent trends in the federal immigration system.

An unknown number will stay anyway, joining an estimated more than 10 million people who make up what the government calls the "unauthorized immigrant population" — barring some radical change in U.S. Immigration and Customs Enforcement policy.

“I’d say ICE simply doesn’t have enough enforcement resources to be able to find everyone who is here illegally and pick them up, so some percentage of people will be able to live out their lives in the United States, even though they don’t have legal status,” said Cornell Law School professor Stephen W. Yale-Loehr, who co-authored the treatise “Immigration Law & Procedure" and also codirects a clinic at Cornell to help people apply for asylum.

Relatively few complete the asylum-application process, a legal path to citizenship, and thus remain in the United States without legal status. And of those who do seek asylum, even fewer will have their claims granted by immigration courts — after they have spent years legally living and working in the country while waiting for the legal process to unfold.

Since last spring, more than 76,000 migrants have arrived in New York City — more than ICE’s 72,177 deportations nationwide in all of the 2022 fiscal year, according to the agency’s latest annual report. In that period, the Border Patrol encountered over 2.2 million foreign nationals crossing illegally, the largest in its history.

Migrants bused to New York City

The city’s new arrivals come mostly from Latin America, after having crossed the U.S.-Mexico border. Tens of thousands have been bused to the city under programs of border-state governors protesting the Biden administration’s immigration policies. Lately, migrants also have begun coming on their own — landing at city airports or showing up at city intake centers. By whatever means, hundreds continue to arrive daily.

Mayor Eric Adams says the city is having trouble finding space to shelter the migrants. The city has a decades-old right-to-shelter mandate — which Adams is trying to relax — for anyone who needs it, and the city’s cost estimate for housing, feeding and otherwise caring for the migrants ranges from $2.6 billion to $4.3 billion by next July.

Adams has welcomed the migrants and opened accommodations such as The Roosevelt Hotel in midtown, but also said “there’s no more room at the inn” and has pleaded for federal and state money to cope with the influx.

“Very few” of the migrants have actually followed up to file for asylum, Adams’ deputy overseeing the crisis, Anne Williams-Isom, said last month. The head of the city’s social services agency, Molly Wasow Park, attributes the low numbers to the difficulty of completing the form and a lack of English proficiency. Advocates also blame insufficient public funding for lawyers to help migrants in the process; having a lawyer increases one's chances of asylum. In addition to those reasons, Yale-Loehr said, sometimes a migrant lacks a qualifying claim.

Most asylum claims are denied

Of migrants who do file for asylum — absent extenuating circumstances, the form must be filed within a year of arriving in the United States — most claims have been denied in recent years.

At the border, most migrants who have arrived in places like New York have already undergone what’s called a “credible fear screening,” by a U.S. Citizenship and Immigration Services officer to determine whether or not the claim is frivolous, according to Yale-Loehr.

Being poor or wanting a better life isn’t a basis under U.S. law for asylum.

“If somebody says, ‘I was fleeing gang violence in El Salvador,’ then maybe that person has a potential claim,” he said, but “if someone says, ‘I’m here because I want to make money for my family in El Salvador because they’re poor,’ that’s simply not an asylum claim and therefore that person would not pass the credible-fear interview and would be expeditiously removed.”

Migrants must prove fear of persecution

An immigrant must prove past persecution, or a well-founded fear for future persecution, based on five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. It’s a high bar to meet, said Chiara Galli, a University of Chicago assistant professor and author of the book “Precarious Protections: Unaccompanied Minors Seeking Asylum in the United States.”

“Even if you are fleeing violence, that doesn’t necessarily mean that you’re going to qualify for asylum under our asylum laws. Because the definition of who is a refugee is much more narrow than just this common sense idea of, ‘you know, you fled violence, hence you’ll be protected.’ It’s much, much more narrow than that,” she said, adding, “People have very, very limited chances of getting asylum — especially if they’re not represented” by a lawyer.

“From the perspective of migrants,” she said, “it’s quite depressing to think about their chances in the system.” 

But the initial standard at the border is a “relatively low” bar, Jeh Johnson, a Homeland Security secretary in the Obama administration, told CBS News in November.

Statistics can vary widely, sometimes week to week. But during the 2008 to 2019 fiscal years, about 83% passed this preliminary interview, according to a 2019 document by the U.S. Department of Justice’s Executive Office for Immigration Review. Of those who crossed the border and underwent this interview, the document says, 14% were eventually granted asylum.

Assuming a migrant later completes asylum paperwork, a 12-page form, actually getting before an immigration judge takes years: the current backlog results in an average wait of 4.3 years, according to the Transactional Records Access Clearinghouse at Syracuse University. In some cases, hearing dates aren’t being scheduled, said Susan Long, the clearinghouse’s co-director.Of the 889,549 backlogged cases, only 341,873 have even been scheduled as of May for an asylum hearing, she said.

When the cases do finally go before a judge, most have been denied. From October 2022 to May 2023, about 53% of asylum-seekers nationwide who went before an immigration judge were denied, with large numbers coming from Latin America and Asia, according to Long. She said that over the past 22 years, the denial rate has “been up and down” nationwide — from 42% denied in 2012, to 69% denied in 2020. In 2023, of the 48,288 asylum cases nationwide where a judge granted or denied the application, 22,946 were granted, she said.

Most asylum-seekers not detained

As for deportations, between October 2000 and September 2021, about 31% of asylum-seekers were ordered removed, 6% left the country on their own, and the rest were allowed to stay, according to a December 2021 court analysis by the clearinghouse.

Migrants who went before immigration judges in New York in the most recent period had better odds than the nationwide average — with a denial rate of 16%, driven by claimants from China, India, Bangladesh and Nepal, she said. The rates fluctuate: In 2019, about 41% were denied in New York courts.

Lately, most aren’t being detained. So until a court date, a migrant who files the paperwork can live legally and apply to work legally in the United States. A denied asylum claim can be challenged at the Board of Immigration Appeals and then to a federal appellate court — steps that can lengthen the time a person is allowed to stay by months or even years. Most people aren’t successful in winning an appeal, Yale-Loehr said.

A work permit cannot be filed under U.S. law until at least six months after a person submits the asylum application. Until a permit is granted, it’s illegal to work in the U.S. and illegal for an employer to hire that person. Adams said in April that a “substantial number” of the migrants are working off the books. He wants the Biden administration to shorten that timeline and broaden who qualifies.

It takes about nine months to a year to get a work permit, Galli said.

An immigrant can stay if he proves he would be tortured if sent home — a different but related avenue to an asylum claim — but that’s also difficult to prove, Yale-Loehr said.

There are other ways to be allowed to stay legally in the United States — winning one of the 50,000 green cards awarded annually via lottery, as well as others granted through sponsorship by an employer or having a close U.S. family member, among other areas. 

"But many new arrivals won't qualify for those," according to Yale-Loehr.

Ultimately, he said, most of the migrants who are coming to the city won't be able to remain in the United States legally.

“If they’re denied asylum,” he said, “I’d say the vast majority would not be able to stay, because they’ve exhausted their bases for trying to stay legally.”

There are different ways to get legal immigration status in the United States, with asylum being just one.

But under most circumstances, having been in the United States illegally for longer than six months sends an applicant to the back of the line and can mean a three-year bar from getting any kind of green card — a penalty waived only under proof of extreme hardship. During those three years, the applicant, even if she qualifies, would need to leave the United States to wait.

By Matthew Chayes

matthew.chayes@newsday.comchayesmatthew

Matthew Chayes, a Newsday reporter since 2007, covers New York City.