Why It Matters
The defensive asylum grant rate in U.S. immigration courts fell from 25% in fiscal 2017 to 3% in the third quarter of fiscal 2026, a 22-percentage-point decline, according to a new Congressional Research Service (CRS) report examining credible fear screening and defensive asylum processes.
Abandonment was the most common outcome in the third quarter, accounting for 92,081 cases, nearly 37% of dispositions. Immigration judges also issued 90,288 in absentia removal orders involving asylum applicants during the first three quarters of fiscal 2026, the highest number reported since at least fiscal 2008.
Section 90003 of H.R. 1, the One Big Beautiful Bill Act, enacted as Public Law 119-21 on July 4, 2025, appropriated $45 billion to Immigration and Customs Enforcement for detention capacity and related activities. CRS reports that congressional appropriations have substantially expanded immigration detention capacity since 2025.
The Big Picture
Under the second Trump administration, the Department of Homeland Security (DHS) expanded expedited removal to the fullest extent authorized by 8 U.S.C. § 1225(b)(1), as outlined in a January 2025 Federal Register notice. The positive credible fear determination rate stood at 80% in fiscal 2016, fell to 38% in fiscal 2020, and reached 43% in fiscal 2025.
Multiple enforcement policies face ongoing legal challenges. The Circumvention of Lawful Pathways rule was vacated following a May 7 district court order, with the government's appeal, No. 26-4982, pending in the Ninth Circuit. The Securing the Border rule is also subject to litigation after a district court found its asylum restrictions unlawful, with the government's appeal, No. 25-5313, pending in the D.C. Circuit.
Proclamation 10888, which sought to suspend access to asylum at the southern border, was found unlawful by the D.C. Circuit insofar as it circumvented statutory removal procedures and restricted access to humanitarian protections. The court stayed its mandate on July 27, leaving asylum restrictions temporarily operative while preserving access to withholding of removal and Convention Against Torture protections. The Supreme Court still has the administration's petition in Mullin v. RAICES, No. 26-239, pending.
A February Executive Office for Immigration Review interim final rule would have allowed the Board of Immigration Appeals to summarily dismiss most appeals unless it affirmatively accepted them for review and shortened the appeal deadline from 30 to 10 days for many cases. A federal district court vacated those provisions on March 8 for failure to comply with notice-and-comment requirements. The 30-day deadline remains in effect, and the court also upheld other procedural changes.
The Bottom Line
A proposed DHS rule would increase the waiting period to apply for asylum-based employment authorization from 150 to 365 days, potentially delaying when applicants receive work authorization. The proposal's comment period closed April 24, and as of Oct. 29, no final rule has been issued. The Supreme Court's handling of the proclamation challenge and any final action on the employment authorization proposal remain two consequential pending decisions affecting asylum applicants' access to protections and employment.
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