On Thursday, the Biden administration announced changes to the process for handling asylum claims at the U.S.-Mexico border, part of an effort to cut the timeframe down to months instead of years.
The changes will allow asylum officers at the border to approve or deny asylum claims, which is currently limited to immigration judges.
The new rules will come into effect 60 days after their published in the Federal Register on March 29.
Good that process will go a lot faster!
— windblowswords (@windblowswords) March 24, 2022
First proposed last August, the new rules also make it so that an officer’s “credible fear interview” at the border acts as an asylum application. The date of the interview with a asylum officer will act as the date of the asylum application—a key factor since asylum seekers must submit their applications within one year of arrival in the United States.
At the moment, asylum seekers who pass the interview still must appear before an immigration judge for a deportation hearing, at which time they can formally submit an asylum application in English. From there an applicant has to appear before a judge again for an asylum hearing.
Under the changes, an asylum seeker who passes a credible fear interview with an asylum officer at the border must appear a asylum hearing —now renamed a “Asylum Merits interview”— between three to five weeks following the credible fear interview, and which point their application for asylum will either be granted or denied.
The current process takes an average of four years to complete, but “under the new rules, asylum officers expect to decide cases in 90 days,” write Amy Taxin and Elliot Spagat at Associated Press. “Rejected applicants will be sent to immigration judges, who also expect to issue decisions in 90 days.”
The new rules also differ a bit from the changes proposed in August. Whereas a proposed change would’ve blocked asylum seekers who received a “negative” credible fear determination from appealing to U.S. Citizenship and Immigration Services (USCIS), only an immigration judge. Now asylum seekers will be allowed one request for reconsideration by USCIS.
The changes also place less of a burden on the Justice Department, which oversees immigration court, and instead shifts more authority to USCIS, which manages asylum officers and is part of the Department of Homeland Security (DHS).
“The United States has been the world’s most popular destination for asylum-seekers since 2017, according to the U.N. refugee agency, putting enormous strain on immigration courts,” write Taxin and Spagat. “The court backlog has soared to nearly 1.7 million cases.”
Administration officials said they expect the overhaul to start in late May or early June, but noted that agencies are still discussing where along the southern border the plan will debut and which migrants will be initially processed under the new procedures.
— Camilo Montoya-Galvez (@camiloreports) March 24, 2022
They also note that, last year, the Biden administrated said “it would need to hire 800 more employees for asylum officers to handle about 75,000 cases a year. Without more money and new positions, it is unclear how much impact the move will have at first.”
“This rule advances our efforts to ensure that asylum claims are processed fairly, expeditiously, and consistent with due process,” said Attorney General Merrick Garland. “It will help reduce the burden on our immigration courts, protect the rights of those fleeing persecution and violence, and enable immigration judges to issue removal orders when appropriate. We look forward to receiving additional input from stakeholders and the public on this important rule.”
While a streamlined process has been long awaited by advocates, some worry that the timeline has been excessively shortened to the point that asylum seekers won’t be able to find proper counsel for their hearings before a judge.
I'll get back to the rest of the changes in a moment, but just going to say fairly definitively right now that these timelines are punishing, brutal, and will almost certainly prevent the vast majority of asylum seekers going through this system from being able to obtain lawyers.
— Aaron Reichlin-Melnick (@ReichlinMelnick) March 24, 2022
“These timelines are punishing, brutal, and will almost certainly prevent the vast majority of asylum seekers going through this system from being able to obtain lawyers,” tweeted Aaron Reichlin-Melnick, an immigration lawyer and senior policy counsel at the American Immigration Council.
Sen. Bob Menendez (D-NJ), chair of the Senate Foreign Relations Committee, welcomed the news while also addressing concerns about too short a process.
“I am glad to see the Biden Administration taking innovative measures to address the massive immigration court backlog and to create an orderly asylum process at the southern border,” Menendez said in a statement. “I believe it is necessary to modernize every legal migration pathway, including our asylum system that far too often is the only legal pathway available to migrants.”
“Nonetheless,” he added, “this announced change must ensure the due process rights of asylum seekers are protected under this new rule. I hope this is only one of many actions the Administration will take to exercise all existing legal authorities to expand legal pathways into the United States and to build a more humane and inclusive immigration system.”
That will mean we can process asylum seekers faster.
That's a good thing, right?
— Charles Kentucky (@Charles48KY) March 24, 2022
Issuing his own statement, DHS Secretary Alejandro Mayorkas tried to lay such fears to rest.
“We are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed,” he said. “We will process claims for asylum or other humanitarian protection in a timely and efficient manner while ensuring due process.”
Thursday’s announcement follows one made by USCIS on Monday restoring a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries, which had been blocked by President Trump’s acting USCIS director, Ken Cuccinelli.
— Nat’l TPS Alliance (@TPS_Alliance) March 23, 2022
“TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents—eliminating the threat of deportation if their TPS protections are revoked in the future,” according to a joint statement issued by the Democracy Forward Foundation, the Central American Resource Center, the the Catholic Legal Immigration Network, Inc., and a immigration law firm based in Virginia.
“The Trump administration’s policy illegally sought to destabilize the lives of tens of thousands with TPS protections,” said Democracy Forward Senior Counsel John Lewis “We’re proud to have helped restore protections that ensure our neighbors have a path to pursue permanent residency.”