Asylum Process Rule Includes Welcome Improvements, But Critical Flaws Remain to Be Resolved
On March 29, 2022, the Biden administration published an Interim Final Rule (IFR) that creates a new process for asylum seekers entering the United States. The IFR contains significant improvements—including preserving access to immigration court removal hearings and establishing a status conference mechanism that encourages narrowing of issues—following comments from members of congress, UNHCR, Human Rights First, and many legal services organizations. Under the IFR, asylum seekers who are placed in the expedited removal process— wherever they enter or are processed into the United States—and who establish a credible fear of persecution may be assessed in an initial, full asylum interview (“Asylum Merits Interview”) by an asylum officer from the U.S. Citizenship and Immigration Services (USCIS). Cases not granted by the Asylum Office are referred to immigration court removal proceedings, as are other asylum cases that are not granted by the Asylum Office. The IFR, which is scheduled to take effect on May 31, 2022, follows an August 2021 Notice of Proposed Rulemaking (NPRM) in which the Departments of Homeland Security and Justice requested public comment on the proposed rule. Comments on the IFR must be submitted on or before May 31, 2022.
The U.S. asylum system should be timely, fair, accurate, and consistent with refugee and human rights law, with adjudications carried out in the least-traumatizing setting possible. The IFR in its current form does not achieve these goals. Despite welcome changes to some aspects of the rule, the IFR imposes new concerning deadlines for the Asylum Office interview process that were not included in the initial proposed rule, similarly creates new immigration court rocket dockets, and continues to effectively gut a crucial safeguard in the credible fear process. The rule also remains rooted in the fundamentally flawed expedited removal process that has been shown time and again to return refugees to persecution and death. Unless these concerning provisions are removed, asylum seekers will be rushed through adjudication without adequate time to secure legal representation, gather necessary evidence, and take other steps to prepare their cases given the complexity and requirements imposed by U.S. law and the adjudicating agencies. These timelines would—as have other “streamlining” initiatives, such as those imposed on the Board of Immigration Appeals by former Attorney General John Ashcroft—lead instead to counterproductive, mistaken denials, increased appeals filed in the federal courts, and growing immigration court backlogs.
The current delays and backlogs in the asylum system developed despite the existence of many timelines and deadlines in the asylum and immigration removal systems. While urgent action is required to restore timely adjudication, imposing new deadlines will discourage legal representation and spur inaccurate decisions, require additional adjudications that would not have been necessary if an accurate decision had been reached initially, and result in the return of refugees to persecution and torture. This factsheet addresses these and other concerning provisions of the IFR and recommends solutions that move the United States toward an asylum system that will provide more accurate, timely, and fair decisions.