The Biden administration published a rule Tuesday overhauling the fast-track asylum system in an effort to speed up the process and take pressure off the nation’s critically overburdened immigration courts.
The new policy was published as an interim final rule by the Department of Homeland Security (DHS), which houses USCIS, and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees the U.S. immigration court system. The rule applies to people seeking asylum who are subject to a fast-tracked deportation proceeding known as “expedited removal,” and is slated to take effect on May 31, 2022.
Under the new rule, some asylum-seekers who express a fear of persecution if they are returned to their home country will have their applications decided by USCIS asylum officers instead of immigration judges. The government’s intent is to avoid adding any additional cases to the nation’s immigration court backlog, which currently sits at over 1.7 million. Pending asylum cases alone make up nearly 40% of the immigration court backlog, with over 70% of those cases being defensive applications (meaning they are in response to DHS starting deportation proceedings against the asylum-seeker).
Though there appear to be some benefits to the asylum overhaul rule, such as increased speed through the system for asylum applicants with very strong cases, immigrant advocates and attorneys have also expressed concern that the program will rush people with complicated asylum claims through the legal process without the time needed to hire an attorney or prepare their case.
In a statement, DHS Secretary Alejandro N. Mayorkas claims the rule will lead to a more efficient asylum system, promising that USCIS and EOIR “will process claims for asylum or other humanitarian protection in a timely and efficient manner while ensuring due process.”
However, for the plan to function at scale, the government needs to hire at least 800 hundred new asylum officers, with caseloads hovering around 75,000 new asylum applications per year. Given this ongoing need to hire asylum officers, as well as the historic difficulty of staffing the agency and the immigration courts, some advocates worry that the plan does not have the resources necessary to effectively administer the asylum system to vulnerable migrants.
Additionally, given that the affirmative asylum backlog at USCIS is nearly 432,000 cases, the addition of tens of thousands of new cases from the CFI process will undoubtedly increase delays within the USCIS Asylum Division, while also potentially lengthening wait times for other groups of immigrants as USCIS reallocates internal resources.
As mentioned above, despite these concerns, the rule does make some positive changes.
As a starting point, the rule largely restores the CFI process to its state before the Trump administration made restrictive changes beginning in 2017 and continuing through the end of his presidency.
The new rule also closes a loophole the previous administration exploited to allow U.S. Border Patrol agents to conduct CFIs, rather than trained USCIS asylum officers. The new rule closes this loophole, helping to ensure that migrants’ asylum claims are heard by a trained and knowledgeable USCIS officer who is well-versed in U.S. asylum law.
Additionally, if a person gets a “positive” CFI, meaning the asylum officer determined the person has a well-founded fear of persecution, rather than being placed directly into immigration court removal proceedings, where they must file a defensive asylum application on Form I-589 within one year of the CFI, the new rule sends the asylum-seeker to an Asylum Merits Interview (AMI), also conducted by a USCIS asylum officer.
The AMI is a non-adversarial process, meaning it is an interview to determine whether the applicant qualifies for a grant of asylum, and is not structured such that the applicant must defend themselves or be cross-examined by a “prosecutor” or DHS attorney. Importantly, the applicant will have the opportunity to have an attorney present during the AMI.
Under the new rule, immigrants who show a well-founded fear of persecution can be granted asylum at the AMI stage, which will end the case in the asylum-seeker’s favor, without having to also file an affirmative I-589 asylum application or wait years for a hearing in one of the immigration courts.
However, it is important to keep in mind that USCIS asylum officers are currently only granting asylum in about 22% of cases. Though the rate at which asylum was granted in immigration courts grew from 29% under President Trump to 37% under President Biden, USCIS approved only 18% of Form I-589 asylum applications in FY 2021, and just over 22% so far in FY2022. Due to these low grant rates by USCIS asylum officers, it is unlikely that a majority of people put through this new expedited asylum process will win their case at the Asylum Merits Interview.
Applicants who are not granted asylum as the AMI will still be referred to immigration court, where they will have the opportunity to assert their case again and request other forms of humanitarian relief such as withholding of removal or protection under the U.N. Convention Against Torture.
The new asylum rule greatly accelerates this timeline, aiming to have asylum-seekers attend the Asylum Merits Interview between 21-45 days after their Credible Fear Interview, and an initial hearing in immigration court 30-35 days after an asylum denial at the AMI. The new rule also adds a pretrial status conference – a new concept in immigration proceedings – which takes place 30 days after the initial hearing (called a Master Calendar Hearing, or MCH), and the full “trial,” or Individual Calendar Hearing, will take place 30 days after that. Essentially, the new rule aims to take a process that, given current backlogs, takes anywhere from 2-6 years, and cut it down to 2-4 months.
It remains to be seen whether this is feasible; in the meantime, immigration advocates are preparing to submit additional comments on the rule to the DHS and Department of Justice before the rule’s finalization on May 31, 2022, and attorneys are preparing to assist asylum-seekers navigate another technical change to an already-complicated system.