Human Rights First opposes new asylum proposals that would deny asylum hearings

WASHINGTON – The Biden administration is proposing a new rule to allow consideration of bars to asylum during initial asylum screening interviewswhen people have just arrived in the country, are often in custody, and typically not represented by legal counselalong with other related policy changes. Human Rights First urges the rejection of these proposals.   

“The proposed policy changes will deny asylum hearings to people who may very well be eligible for asylum,” said Eleanor Acer, Senior Director for Refugee Protection at Human Rights First. “It is both unrealistic and unconscionable to subject people seeking refuge to legally and factually complex bars to asylum during initial fear screenings where they are not likely to be represented by legal counsel. Some of the bars included in the proposed rule have long baffled legal experts and government lawyers, and ensnared people who are innocent of any wrongdoing.” 

In March 2022, the Biden administration rightly returned to the two-decade-long practice of not applying bars to asylum at the credible fear screening stage, explaining that applying bars during credible fear screening “would make these screenings less efficient” and that the complexity of the required inquiry, due process and fairness considerations, along with congressional intent that the “expedited removal process be truly expeditious,” counseled against the application of these bars in the screening process. Human Rights First has explained that assessing bars at the screening stage would increase the risk of wrongfully returning people seeking asylum to persecution. Over the years, many people who are victims of armed groups or engaged in no wrongful conduct have been wrongly swept up by such overly broad bars, as Human Rights First has documented in the past.

While the introductory language to the proposed rule suggests that DHS may apply it primarily in cases where Asylum Officers believe an asylum applicant may be barred from protection due either to a criminal conviction abroad or because evidence suggests the person committed a serious non-political crime abroad, this kind of evidence is not always as clear as it may at first appear.  In addition, while the introductory language offers the example of a hypothetical applicant convicted of a very serious crime in a country “with a fair and independent judicial system,” the proposed rule itself is not limited to criminal records issued from such countries. A credible fear interview offers an asylum applicant no meaningful procedural protections to ensure that the records on which the Asylum Office is relying are accurate and actually pertain to this applicant. Situations where criminal acts on the part of the applicant were alleged but never tried in a country outside of the United States can be even murkier and impossible to resolve accurately in a summary interview process.

In announcing this proposed rule, the Department of Homeland Security also announced it had issued separate guidance to Asylum Officers to consider another legally and factually complex issue during credible fear interviews, specifically the question of  whether an asylum seeker could reasonably relocate to another part of the country of feared persecution. “Requiring consideration of the many legal and factual issues surrounding internal relocations will likewise spur inefficiency and mistaken deportations to persecution,” Acer added. “Expecting people seeking asylum to manage these assessments alone is unfair and unjust.”

To speak with Eleanor Acer or other experts at Human Rights First, please contact [email protected].


Published on May 9, 2024


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