Back in February, when the Biden administration proposed a new regulation that would essentially restrict the vast majority of border crossers from qualifying for asylum, we broke it down with a guide to qualifying for asylum in the United States in 12 not-so-easy steps. The final regulation, published Wednesday, will go into effect Friday with the end of the Title 42 “public health” emergency.
The final regulation has been tweaked from the vague draft text, so we’ve modified our not-so-easy steps—which still, let us remind you, are not legal advice—accordingly. Come Friday, this will become the process many people will be forced to go through to find safety on U.S. soil.
- Step 1: If you are from Cuba, Haiti, Nicaragua, Ukraine or Venezuela, and you have not irregularly entered Panama (through the Darién) or Mexico: go to step 2. If not, go to step 3.
- Step 2: If you have people in the U.S. willing to sponsor you who make enough money, and have cash for airfare, a passport, and time to wait: apply for humanitarian parole, which will allow you to fly into the U.S. and work legally for 2 years. If you don’t, go to Mexico and Step 3.
- Step 3: Try to find safe shelter on the Mexican side of the border (while evading Mexican immigration enforcement if you don’t have permission to be in Mexico). If you can find it, and have the ability to freely travel to a port of entry (instead of having your smuggler decide where you’ll be crossing), go to step 4. If not, cross into the U.S. between ports of entry—something that will carry a criminal penalty—request asylum, and go to step 7 for your eventual screening interview.
- Step 4: If you have a phone that can install CBP One, the ability to read English, Spanish, or Haitian Kreyol, and patience to try to register for appointments day after day and hope you win a lottery for an appointment slot: download CBP One and keep trying to get an appointment until you are allowed to access the normal asylum process by going through a port of entry. If you run out of patience, money, cell signal, or hope, go to step 5.
- Step 5: Go to the port of entry – assuming there aren’t U.S. or Mexican officials positioned in front of it preventing you from setting foot on U.S. soil. Try to get the attention of an officer and request asylum if you make it onto U.S. soil, then go to step 6.
- Step 6: Wait for your credible fear interview with an asylum officer. You can argue to them that you were unable to use CBP One due to an “ongoing and serious obstacle”; the burden is on you to prove that. If you can persuade the official it is more likely than not you were thus prevented, go to the normal asylum process, starting with a credible fear interview. Otherwise, go to step 7.
- Step 7: The asylum officer will ask whether you applied for—and were denied—asylum in another country before coming to the U.S. (Having applied for asylum but given up while waiting on an overloaded asylum system to review your application doesn’t count as a denial.) If you didn’t, you are now presumed barred: ineligible for asylum. Go to step 8.
- Step 8: The asylum officer will now find out if you qualify for an exemption to the bar—in legal terms, whether you “rebut the presumption” of ineligibility. If you were subject to an “acute” medical emergency; in “imminent and extreme danger;” or being trafficked in a “severe form” and can demonstrate all of this to the asylum officer’s satisfaction, you will be allowed to access the normal asylum process, including a credible fear interview. Otherwise, go to step 9.
- Step 9: At this point, the interview will proceed like a normal asylum screening interview, with questions about persecution faced in your home country and why you fear return. But the standard for passing the interview has shifted. Instead of the normal asylum process, which uses a “credible” standard met by 60% of interviewees over the last year (though it’s been higher in the past), you’re now subject to a “reasonable” standard that about a third of interviewees have met over that period. If you can pass the higher bar, you pass the interview and will be allowed to stay in the U.S. to appear before an immigration judge; go to step 12. If you can’t, go to step 10.
- Step 10: You fail the interview. If you want to appeal to a judge, request it in writing and go to step 11; otherwise, you will be deported.
- Step 11: The judge reviews your interview transcript with the asylum officer and does their own review of whether you have demonstrated that you meet an exception to the bar (like the asylum officer did in step 8). If they find you do, you will be allowed to access the normal asylum process. If not, they’ll then review whether you demonstrate “reasonable fear” (as in step 9). If they find you do have a “reasonable fear,” go to step 12. If they find you don’t, you will be deported.
- Step 12: You are allowed to apply for asylum before the immigration judge—which doesn’t mean you’ll get it. Submit your asylum application, then wait six months to six years for your hearing before the judge.
- Step 13: At the hearing, the judge will do their own review of whether you have demonstrated that you meet an exception to the bar (like the asylum officer did in step 8 and the judge in step 11, if you had to appeal a negative interview result). If they find you do, the judge will determine whether your case would meet the standard for asylum under the normal asylum process. If you win your case, you will be granted asylum. If the judge denies your case, you will be ordered deported.
- Step 14: If the judge decides you do not qualify for an exception to the bar, they’ll then review whether you are eligible for withholding of removal, which is harder to win than asylum and offers fewer protections. If the judge finds that you don’t meet that standard, you will be ordered deported.
- Step 15: If you do meet the higher standard for withholding of removal, the judge will check one more thing: whether you have a spouse or child with you in court seeking asylum as part of your application who couldn’t independently be granted protection if you were barred from asylum, or a spouse or child who would be eligible to apply to join you in the U.S. if you were given asylum but won’t be able to do so if you’re barred from asylum under the rule. If you do have a spouse or child in those circumstances, you’ll be exempted from the ban on the basis of “family unity” and granted asylum, along with any family members who joined your application. If you don’t, you will be granted withholding of removal.
Complicating things further, many asylum seekers’ interviews in step 6 will be conducted via phone booths in U.S. Customs and Border Protection facilities. They’ll be held to a higher standard, but it’s still unclear how they will be able to access a lawyer or present evidence. And these higher-stakes, more complicated interviews will be rushed through at the rate of hundreds a day, thanks to extra Department of Homeland Security employees detailed to do these new screening interviews.
It’s a lot of changes to immigration law and policy at once. And there’s little room for an easy transition. With so much happening so fast, it’s not hard to see how humanitarian protection—the whole point of this process, in theory—might instead end up getting lost in the shuffle.
FILED UNDER: Biden Administration, Title 42