Human Rights First Expresses Concern on Some Proposed Asylum Changes

WASHINGTON – Human Rights First welcomed some changes included in a proposed asylum rule posted today by the Departments of Homeland Security (DHS) and Justice, but expressed concerns over aspects of the rule that would weaken due process protections for asylum seekers and expand the use of the inherently flawed expedited removal process.

“While we welcome efforts to provide initial asylum assessments in a non-adversarial setting, that reform should not be premised on the use of the fundamentally flawed expedited removal system,” said Eleanor Acer, senior director for refugee protection at Human Rights First. “The proposed rule could be used and abused to rush asylum seekers through adjudications without sufficient time to secure legal representation, gather evidence or prepare their cases, leading U.S. agencies to return to persecution people who actually do qualify for asylum. The proposal’s restriction on access to immigration court hearings, leaving asylum seekers with a ‘review’ of an asylum officer’s negative decision, could limit their ability to present crucial evidence.”

Human Rights First welcomed efforts to expand the categories of asylum seekers eligible to have their cases decided before U.S. Citizenship and Immigration Services (USCIS). These interviews allow asylum seekers to present their claims in a less traumatizing, non-adversarial setting. By resolving more cases initially at the asylum office, fewer cases will need to be referred into the immigration courts, contributing to system efficiencies and helping to reduce the immigration court backlog. Human Rights First welcomed other provisions in the rule, including those that restore prior procedures preventing assessments of complex bars to asylum in the fraught context of credible fear interviews.

However, the changes would allow the government to expand its use of expedited removal, refer asylum seekers to initial asylum “hearings” with specialized asylum officers in the USCIS, provide only an immigration court “review” rather than an actual hearing, and end the essential life-saving safeguard of asylum office reconsideration of negative credible fear determinations.

Human Rights First previously detailed its concerns about reports that asylum seekers might receive, under this proposed rule, only “reviews” of asylum officer decisions. The proposed regulations also would limit subsequent immigration court review of adverse determinations by requiring asylum seekers to affirmatively request review and potentially restricting evidence that can be presented. While improving the way asylum cases are processed is necessary to increase fairness and reduce inefficiencies, the administration must do so in a way that ensures the due process rights and protection of asylum seekers and ensures that any changes cannot be used and abused by future administrations to undermine asylum protections.

Human Rights First and dozens of other organizations have repeatedly urged, including most recently in a June 8, 2021 letter, that these interviews not be conducted within the expedited removal process, which needlessly diverts asylum office resources and often blocks refugees from protection. The groups also urged the administration to uphold fundamental due process protections by providing asylum seekers referred to immigration courts with de novo hearings, rather than more limited “reviews.”

“It is more crucial than ever that the Biden administration take steps to improve the fairness and effectiveness of asylum office assessments,” added Acer. “If asylum officers continue to deny protection to people who actually qualify as refugees under our laws, this system will continue to unnecessarily and inefficiently add to the dockets of the immigration courts.”

As the Biden administration takes steps relating to U.S. asylum, Human Rights First implores the administration and agency leaders to:

• Improve the fairness of asylum office interviews and refer asylum seekers for full asylum interviews at their destination locations without the use of expedited removal- a fundamentally flawed process that endangers refugees
• Ramp-up case support initiatives and funding for legal representation, use legal parole authority and do not send people seeking U.S. refugee protection to immigration jails while their asylum cases are adjudicated
• Refer asylum cases from the border and for those already in removal proceedings to USCIS asylum office interviews while maintaining appeal routes via de novo immigration hearings and federal court judicial review – and ensure that people can submit all evidence necessary to support their cases, rather than treating such evidence as an exception
• Not impose arbitrary, rushed deadlines for case completion that will lead to erroneous negative determinations, and eliminate provisions from the proposed rule that sacrifice critical due process and protection safeguards – including elimination of the rule allowing asylum officers to reconsider negative credible fear determinations, a crucial safeguard against the wrongful deportation of refugees
• Ensure asylum seekers receive work authorization, as provided by U.S. law and to its maximum extent, so that they can support themselves and their families while their cases are being adjudicated
• Critically, uphold U.S. asylum laws and Refugee Convention legal obligations at our borders, ending the use of Title 42 and other policies that are inconsistent with refugee law.