New Process for Asylum Cases at the Border

Welcome back to Immigration Lawyer Blog! In this video, attorney Jacob Sapochnick discusses an exciting new procedure for individuals arriving at the United States border to apply for asylum, specifically with respect to those asylum seekers who are subject to expedited removal.

Want to know more? Keep on watching for all the details.


What is Asylum?

Asylum is a form of protection which allows an individual to remain in the United States instead of being removed to a country of feared persecution. To apply for asylum in the U.S., individuals must file the required application, form I-589, and submit it with the appropriate documentation within one year of arriving to the United States. To be successful, individuals must establish that they have suffered persecution or fear that they will suffer persecution based on their race, religion, nationality, membership in a particular social group, or political opinion.

Under current immigration law, individuals applying for defensive asylum at the border (meaning that they do not have a valid visa at the time of entry) are detained by the United States Customs and Border Protection (CBP) and become subject to removal proceedings. Once an immigration hearing is scheduled, the asylum seeker is given the opportunity to make his or her case for asylum before an immigration judge.

Currently, the defensive asylum process is taking over 7 years to complete in the United States, including the required scheduling of a hearing before an immigration judge.

New Interim Final Rule

To streamline the defensive asylum application process at the border, the Biden administration recently published a new interim final rule in the federal register entitled, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.”

Under the new interim final rule, released on March 29, 2022, the Biden administration seeks to overhaul the current defensive asylum system to drastically reduce backlogs in the immigration courts and improve filing procedures.

The final rule proposes sweeping changes to current asylum law including allowing asylum claims to be heard and evaluated by United States Citizenship and Immigration Services (USCIS) asylum officers instead of immigration judges.

If the new policy is successful, the Department of Homeland Security (DHS) estimates that the defensive asylum process will take 6 months to complete, instead of the current processing time of 7 years. With these new proposals in place, USCIS Officers would be able to conduct credible fear interviews, make credible fear determinations, and determine whether a noncitizen’s asylum application should be granted.

Under the new policy, asylum officers would be required to conduct the credible fear interview within 21 to 45 days of the date that the initial positive credible fear determination was given to the noncitizen. After that point, the asylum officer would have 60 days to determine whether the application for asylum should be granted.

In defense of the new rule, the government has stated, “This rule helps meet the goal of lessening the strain on the immigration courts by having USCIS asylum officers adjudicate asylum claims in the first instance, rather than immigration judges. As explained further in this rule, the Departments anticipate that the number of cases USCIS refers to EOIR for adjudication will decrease.”

At present, there are more than 670,000 defensive asylum cases pending in immigration court, creating an unprecedented need for change to current adjudication processes. Asylum cases alone make up 40% of the total 1.7 million case backlog.

Asylum Seekers Granted Parole

With this new rule the government would also accomplish greater efficiency by allowing asylum seekers arriving at the United States border to be “paroled” into the United States while their asylum process remains pending in the United States.

Officials speaking on condition of anonymity have said that this new process would be implemented gradually. No information has yet been provided regarding the planned start of this new asylum process. However, one thing is for certain. The government will need to hire additional asylum officers to handle the influx of applications that will surely be filed once the rule becomes effective.

According to the Federal Register notice, the interim final rule will become effective May 31, 2022 (60 days after publication in the Federal Register).

To read more about this new policy please click here.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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