Rushed Timelines, Inadequate Access to Legal Representation Impede Meaningful Opportunity to Seek Asylum Under New Asylum Processing Rule

On May 31, 2022, the Department of Homeland Security (DHS) began implementing a new asylum process, pursuant to an Interim Final Rule (referred to as the “Asylum Processing Rule,” or APR), to adjudicate asylum cases of some people who request protection in the United States. Under the Biden administration’s APR, asylum seekers who are placed in the expedited removal process by DHS and who establish a credible fear of persecution may have their asylum claim assessed in an initial, full asylum interview (“Asylum Merits Interview,” or AMI) by an asylum officer from U.S. Citizenship and Immigration Services (USCIS). Cases not granted by the Asylum Office are referred to accelerated immigration court removal proceedings. The APR imposes unreasonable deadlines that hinder access to counsel and deprive asylum seekers of a fair opportunity to present their cases.

In its initial implementation phase, DHS subjected individuals detained at two detention facilities in Texas, the South Texas Processing Center and the Houston Contract Detention Facility, to the APR, and has recently expanded implementation to the Otay Mesa Detention Center as well as some non-detained individuals. Certain asylum seekers who receive positive credible fear determinations and indicate an intention to reside in Boston, Chicago, Los Angeles, Miami, Newark, New York, or San Francisco may be referred for AMIs in their destination cities. Since DHS began implementing the Biden APR in late May 2022, the Asylum Office has completed at least 159 AMIs. Asylum seekers scheduled for AMIs to date have been predominantly from Brazil, Colombia, Dominican Republic, Ecuador, Peru, and Turkey, with the largest number of AMIs conducted for Colombian asylum seekers.

Key findings

DHS data published in late September 2022 reveals that:

• The vast majority of asylum seekers processed under the APR to date have been unable to secure legal representation for AMIs (92.5 percent unrepresented in completed cases) or the preceding credible fear process (99.1 percent unrepresented in completed cases).
• Counsel in asylum adjudication continues to be crucial: asylum seekers with lawyers during AMIs were more than twice as likely to receive asylum than unrepresented individuals.
• The APR’s unreasonable deadlines—including a requirement that the government schedule the AMI within 21 to 45 days of a positive credible fear determination—hinder asylum seekers from obtaining legal representation. The data reflects that asylum seekers have been scheduled for AMIs only weeks after being released from detention, with median times ranging from 33 to 35 days after receiving a positive credible fear determination, leaving virtually no time to secure counsel.

These statistics raise alarm and underscore concerns that the process may fuel erroneous decisions by rushing adjudications before asylum seekers have an opportunity to adequately prepare their asylum case or secure counsel and continue to result in wasted resources as cases that should have been granted are instead referred to the immigration court for adjudication. The data also raises serious concerns about the administration’s continued use of the deeply flawed expedited removal process, which leads to the deportation of refugees to persecution and torture and has already resulted in high rates of negative credible fear determinations for asylum seekers identified for processing under the APR.

Recommendations

The Biden administration and Congress should take immediate steps to ensure legal representation for asylum seekers subjected to the process. In August 2022, a coalition of groups dedicated to expanding access to legal services for asylum seekers wrote to the administration with recommendations to establish regular APR-specific stakeholder engagements, promptly provide information about individuals identified for processing under the APR to legal service providers, and ensure that asylum seekers receive a list of recognized organizations and accredited representatives for the destination city where they intend to reside when they are served with a positive credible fear determination. U.S. agencies should make it a top priority to work with Congress to provide funding for legal representation during this process.

As Human Rights First and other groups have previously recommended, DHS and the Department of Justice should, in issuing a final version of the Asylum Processing Rule: provide for referral of asylum seekers for full initial Asylum Office adjudication of their cases without first subjecting them to the flawed expedited removal process; provide asylum seekers with sufficient time to secure counsel and prepare their case by removing unrealistic and counterproductive deadlines for scheduling of AMIs—including the requirement to schedule the AMI within 21 to 45 days—and accelerated immigration court process for individuals processed under the APR; and remove new restrictions on the authority of the Asylum Office to reconsider negative fear determinations—including a draconian seven-day deadline—to help ensure that refugees are not wrongly deported to persecution and torture in violation of U.S. law and treaty obligations.