The American Immigration Council does not endorse or oppose candidates for elected office. We aim to provide analysis regarding the implications of the election on the U.S. immigration system.

The Biden administration announced this week that it will propose a new rule to speed up the fair and humane processing of asylum claims of people arriving at the U.S. border. The issue has been the recent subject of fierce public and political debate. Tellingly, this is the new administration’s first proposed immigration rule.

Among the many proposed changes, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) want asylum officers to have authority to grant asylum applications for people facing fast-track removal at the border. Right now, only an immigration judge can do that—often after the applicant has waited many years.

The proposed rule concerns the expedited removal process. Expedited removal allows low-level immigration officers to quickly deport certain people who arrive at a U.S. border without proper documentation. However, if an asylum seeker expresses a fear of being deported, they are given a credible fear interview with a trained asylum officer. If the asylum officer finds the person does not have a credible fear, the asylum seeker can seek cursory review by an immigration judge. They can also seek reconsideration of the negative decision with the asylum office. If both these efforts fail, they can be swiftly deported. There is no right to an appeal.

The new proposed rule primarily addresses what happens if an asylum officer finds the person has a credible fear of persecution or torture. Here is how the process works now:

  • Once an asylum officer makes a positive credible fear decision, the person is placed in deportation proceedings before an immigration judge. They can then apply for asylum in immigration court. Eventually they get a full hearing before an immigration judge. They can appeal the decision of the immigration judge to the Board of Immigration Appeals (BIA) and eventually the federal courts of appeal.

Here are some of the Biden administration’s proposed changes:

  • The rule rejects a previous, currently paused rule that would have applied a higher standard of credible fear for some claims. Instead, an asylum officer from U.S. Citizenship and Immigration Services (USCIS) would apply the same screening standard for these claims—whether there is a “significant possibility” that the person is eligible for asylum, withholding of removal, or Convention Against Torture (CAT) protection. The asylum officer would not consider any of the bars to relief during this threshold screening, unless the person could be removed to Canada.
  • A person who receives a “negative” credible fear determination would not be able to seek reconsideration from USCIS, only the immigration judge.
  • If USCIS decides the person has a credible fear, the record would be considered an asylum application as of the date USCIS serves its decision. This timing matters because asylum seekers must file an application within one year of entering the United States.
  • An asylum officer would then have authority to grant an application for protection (asylum, withholding of removal, or CAT). An asylum officer would hold a nonadversarial hearing, where the applicant would have the right to have an attorney at his own expense.
  • If the asylum officer denies asylum, the person could ask for the decision to be reviewed by an immigration judge. First, the immigration judge would not conduct a full evidentiary hearing. The review would also be limited to asylum, withholding, and CAT protection. The applicant could only apply for another form of relief if the judge and U.S. Immigration and Customs Enforcement (ICE) agree.
  • An ICE officer would have expanded authority to release a person in expedited removal on parole. Under the proposed rule, ICE could grant release on parole where “detention is unavailable or impracticable.” The rule would prevent asylum seekers released on parole from obtaining work authorization on that basis.

DHS and DOJ justify these substantial changes by pointing primarily to two facts.

The departments point to the significant increase in the number of people arriving at the U.S. border seeking asylum, including families. According to agencies, between 2000 and 2019, the number of individuals making fear claims increased over 900%.

They also consider the significant backlog in the immigration courts, which currently has 1.3 million cases pending. According to the agency, for non-detained individuals in removal proceedings, the recent average case completion time has been 3.75 years.

Much remains to be seen. Even if the administration finalizes the rule in its current form, it plans to implement the rule in phases, starting with certain non-detained families arriving at the southern border. USCIS anticipates it will need to hire and train 800 new asylum officers to implement the rule.

There are still many open questions about the rule’s implementation and impact. At first glance, there appear to be reasons to be hopeful and grounds for concern. The proposed rule offers another pathway to release asylum seekers from detention on parole (though without the ability to work) and offers the promise of obtaining asylum protection faster.

But meaningful access to counsel will be challenging if asylum applications are fast-tracked in areas with few attorneys. The new limited immigration court review threatens to impinge on the due process rights of those fleeing persecution. It will be vital for advocates to carefully monitor this proposed rule and any implementation.

FILED UNDER: , ,