Analysis of Asylum Provisions in Emergency National Security Supplemental Appropriations Act, 2024
The Emergency National Security Supplemental Appropriations Act, 2024 abandons the presumption that the United States will fairly hear the claims of those seeking safety from persecution and torture. As such, it is inconsistent with our nation’s best traditions and breaks our international legal commitments.
The bill would prevent people seeking refuge from making asylum claims by creating a Title 42-like expulsion authority, impose additional barriers to prevent people from accessing asylum adjudications, and new processes would deny asylum seekers immigration court hearings and federal court review. Beyond the new expulsion authority, the bill would eliminate crucial guardrails in the expedited removal process. The bill also would increase the likelihood that bona fide refugees will be returned to persecution or expelled to violent harm in Mexico.
While this bill will not address the actual problems at the border or in the asylum system – and in fact make it worse – there are effective and humane ways to address challenges at the southwest border and improve the adjudication of humanitarian claims. Human Rights First and other groups have repeatedly shared such recommendations with the Biden administration and Congress. Human Rights First outlines some concerns with provisions of this bill that would impact people seeking asylum.
Eliminates Crucial Safeguards on Expedited Removal
Section 3302 would eliminate crucial safeguards on expedited removal and, by erecting new screening barriers, return without asylum hearings people who have significant possibilities of being eligible for asylum to their country of persecution. Expedited Removal already increases the chances of returning individuals to persecution and torture. Indeed, it is already riddled with due process and refugee protection deficiencies that leave people at risk of refoulement to persecution, as Human Rights First documented in its report, Pretense of Protection.
Dangerously Heightens the Credible Fear Standard in Expedited Removal
Section 3202 would increase the screening standard, turning the Credible Fear Interview into a bar to asylum hearings for people who have a “significant possibility” of asylum eligibility. Current law requires that asylum seekers who have a “significant possibility” of establishing their asylum eligibility are provided with actual asylum hearings. Under Section 3202, asylum seekers would be required to meet a higher standard and demonstrate a “reasonable possibility” of establishing asylum to access an asylum hearing or other full assessment. They will need to prove this within days of being encountered, a difficult task after surviving a traumatizing journey. Asylum seekers are overwhelmingly not represented in these interviews, so they will need to prove their “reasonable possibility” without the benefit of counsel, time to recover or collect evidence, and often while detained.
As a result, asylum seekers who have a significant possibility of establishing asylum eligibility but do not meet the new unduly high standard will be returned to persecution and harm without a full consideration of their asylum claim. A similar approach, under the Circumvention of Lawful Pathways Rule, resulted in people being three times as likely to not pass screenings andordered deported, including political dissidents from China and Venezuela and LGBTQ asylum seekers. The United Nations High Commissioner for Refugees has confirmed that higher screening standards subject refugees to undue risk of return to persecution.
Raising the credible fear standard is not an appropriate way to “weed-out” baseless claims. Instead, the change will affect people who have a significant possibility of establishing their asylum eligibility. Moreover, contrary to misleading assertions that most asylum seekers are not eligible for asylum, Immigration Courts grant relief to the majority of individuals who receive a positive credible fear determination (under the existing “significant possibility” standard).
