ASYLUM PROCESSING RULE AT ONE YEAR
One year ago, the Department of Homeland Security (DHS) began implementing an Interim Final Rule (referred to as the “Asylum Processing Rule,” or “APR”) that created a new process for some asylum seekers who had recently come to the United States. This rule, which went into effect on May 31, 2022, provides that asylum seekers who have established a credible fear of persecution may have their asylum cases decided initially by the U.S. Citizenship and Immigration Services (USCIS) Asylum Office and that cases not granted by the Asylum Office are then referred to immigration court removal proceedings.
Prior to the rule, the government would generally place asylum seekers with a credible fear of persecution in immigration court removal proceedings — a process that is often more adversarial and traumatizing than USCIS Asylum Office adjudications and requires additional governmental resources. While the rule created the potential for a more efficient and humane process through the resolution of more asylum cases through initial USCIS asylum interviews — a step that advocates have long urged the government to take — certain fundamental flaws, including unreasonably short deadlines, have hindered access to counsel and deprived asylum seekers of a fair opportunity to present their cases.
The rule requires the Asylum Office to schedule an interview (the “Asylum Merits Interview,” or “AMI”) within 21 to 45 days of a positive credible fear determination, leaving asylum seekers virtually no time to find a lawyer and prepare their case. Those who are not granted by the Asylum Office are subjected to accelerated timelines in immigration court as well, with a final hearing on their case occurring within just a few months. These rapid timelines for scheduling AMIs and immigration court proceedings conflict with Congress’s intent — in setting a one-year filing deadline for asylum applications and rejecting a shorter deadline — to provide asylum seekers with adequate time to secure legal representation and prepare their cases. The timelines are also counterproductive and inefficient. Lack of access to counsel and inadequate preparation time lead to mistaken referrals to immigration court of cases that could have been granted at the AMI stage, as well as immigration court denials that necessitate further administrative and judicial appeals to correct erroneous decisions.
Another serious defect of the rule is that it is embedded in the expedited removal process, requiring asylum seekers to first overcome that hurdle before they can have their cases adjudicated by the Asylum Office. This damaging approach limits governmental flexibility, creates inefficiencies, and further cements DHS’s use of a due process deficient procedure, which often yields mistaken decisions that return refugees to persecution and torture. The rule also endangers the lives of refugees seeking asylum by eviscerating a critical safeguard in the process that has saved asylum seekers from summary deportation for decades: asylum seekers’ ability to request reconsideration of erroneous negative credible fear decisions. The APR created a draconian and unrealistic seven-day deadline for asylum seekers to file requests for reconsideration and barred them from submitting more than one request.
Over the past year, DHS has conducted a phased implementation of referrals to AMIs in certain detention centers and for asylum seekers planning to live in or near certain cities. It has also applied its new restrictions on requests for reconsideration to asylum seekers attempting to remedy erroneous credible fear decisions. Since the rule went into effect, Human Rights First has monitored the rule’s implementation, convened a national group of legal service providers and advocates dedicated to assisting asylum seekers processed under the rule, analyzed data published by DHS on implementation of the rule, and joined other organizations in issuing recommendations. This report is based on Human Rights First’s observations and monitoring of the rule over the past year and updates prior Human Rights First materials analyzing DHS data on the rule.