Asylum screening process: On May 9, the Biden administration proposed a rule that would allow asylum officers to consider and impose certain restrictions or “bars” to the initial asylum screening process at the border. Currently, these bars are considered later in the asylum process at a full hearing before an immigration judge. Comments are being accepted until June 12, 2024.
U.S. Citizenship and Immigration Services’ (USCIS) proposal aims to reduce the use of the U.S. government’s resources on individuals who would otherwise be ineligible for asylum or withholding of removal. It would apply to asylum seekers subject to expedited removal, a fast-track deportation process where low-level immigration officers can summarily remove certain noncitizens without a hearing. If a noncitizen claims fear of returning to their home country, they must be provided an interview to determine whether they’re potentially eligible for protection under U.S. law.
The proposed rule provides discretionary authority to asylum officers to consider if an individual “appears” to be subject to a set of mandatory bars in these interviews (known as credible fear or reasonable fear interviews). The five relevant bars include whether the person:
- Has previously been convicted of a particularly serious crime.
- Has participated in the persecution of others.
- Has committed a serious crime abroad.
- Poses a threat to national security.
- Has engaged in terrorist-related activity.
If USCIS determines that a person seeking asylum may be subject to one of these bars, the person would be given an opportunity to show that it does not apply. If they’re unable to, they would not pass the interview and would be issued a negative fear finding. Under the proposed rule, even if a person has shown the requisite fear to be considered for protection, they could still be found to be subject to a bar and be swiftly deported.
USCIS estimates this change would impact a relatively small number of people because few migrants who would otherwise pass the interview and be allowed to request protection are also flagged as potentially being subject to a bar. For example, USCIS states that between fiscal years 2020 and 2023, 2 to 4% of asylum seekers who passed their credible fear interviews were also flagged for possibly being barred from requesting protection. Similarly, during the same period, between 10 to 20% of reasonable fear interviewees who passed their initial screening were flagged as possibly being subject to a bar.
The agency believes this new authority would provide it operational flexibility because it would be used at an asylum officer’s discretion and its application would only be “in those cases where there is easily verifiable evidence available to the [asylum officer] that in their discretion warrants an inquiry into a bar, and the [asylum officer] is confident that they can consider that bar efficiently at the credible fear stage.”
However, this proposal raises several concerns. First, despite USCIS’ claims that these regulations would only impact a few, the proposal does not include any language limiting a negative fear finding to only those cases where there’s “easily verifiable evidence” that a bar applies. Advocates have long complained that the expedited removal process lacks transparency. This means it will be difficult to determine exactly how this new policy will be implemented.
In addition, deciding whether a person is subject to any of these bars is a complex undertaking—it requires fact-intensive inquiries and legal analysis. Many noncitizens must also navigate the expedited removal process without counsel. This means that migrants, who just recently arrived at our border and know nothing about our laws, will be unable to effectively argue against the application of a bar in their case.
While the Biden administration has received immense pressure to act on the border, this proposal is a step in the wrong direction. Its quest for more “tools” at the border has only resulted in a chaotic border policy where noncitizens are subject to a labyrinthian set of barriers.
Providing asylum officers’ discretion to apply mandatory bars in the opaque and highly unaccountable expedited removal process will not add any predictability to the process. Instead, it will lead to the removal of an unknown number of migrants back to harm.
FILED UNDER: Biden Administration, U.S.-Mexico Border
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