Take Action on the New Interim Final Rule on Asylum and Credible Fear Procedures
By: Sadie Casamenti, Immigrant Justice Corp. Fellow, New York Legal Assistance Group (NYLAG)
The U.S. Department of Homeland Security (DHS) and the U.S. Department of Justice are planning to reshape the credible fear process for individuals seeking asylum in the United States, which governs whether a person is permitted to stay in the United States because of a well-founded fear of being persecuted if they return to their home country. When the Biden administration first proposed the new regulations, the New York Legal Assistance Group (NYLAG) expressed concern that they would not adequately protect the rights of asylum seekers in the name of efficiency.
On March 29, 2022, after receiving over 5,000 public comments on proposed regulations, the Biden administration issued its interim final rule. While the interim final rule contains some provisions that would improve the current asylum system, they also pose a significant risk to asylum seekers’ right to a full and fair hearing of their claims. Here are some of the good, not-so-good, and bad ways that the interim final rule’s changes will impact asylum seekers.
The Good
The public comment process resulted in some positive, though imperfect, changes in the interim final rule. Below are two examples of amended changes to specific proposals criticized by advocates:
The Interim Final Rule Preserves (But Limits) the Option to Seek USCIS Reconsideration
DHS has exercised common sense by retaining the U.S. Citizenship and Immigration Services (USCIS)’s right to reconsider negative credible fear determinations made by asylum officers-- though limiting this right to a timely, one-shot deal that will further magnify the risks of deportation. In the interim final rule, DHS revised the widely-criticized proposed provision to eliminate the option to seek USCIS reconsideration. NYLAG had expressed concerns that this proposed rule would remove important procedural safeguards that provide a mechanism for asylum seekers to challenge an erroneous finding.
In the revisions to the proposed DHS regulations, USCIS will retain its ability to reconsider, but will now allow for just one reconsideration request, “provided such reconsideration is requested by the applicant or initiated by USCIS no more than 7 days after the concurrence by the IJ, or prior to the noncitizen's removal, whichever date comes first.” 8 C.F.R. § 208.30(g)(1)(i). A compressed timeline to bring forth a single opportunity for USCIS review will harm applicants who need time to secure legal counsel, gather together new evidence and legal authority, and adequately assess errors in their initial credible fear interview.
The Not-So-Good
The Interim Final Rule Continues Narrow Use of Parole, But Provides No Specific Procedures for People with Established Credible Fears.
In the interim final rule, DHS has rescinded the proposed provision to revise the parole standard and expressly provide for parole if “detention is unavailable or impracticable,” including where “continued detention would unduly impact the health or safety of individuals with special vulnerabilities.” Instead, the parole standard for people in expedited removal will be in line with 8 C.F.R. § 212.5(b) and DHS will continue to consider people for parole “only on a case-by-case basis.” 8 C.F.R. § 212.5(b). In its amendment, the administration recognized DHS’s statutory authority to release asylum-seekers from detention for humanitarian reasons or in the public benefit pending a credible fear interview. These proposed provisions lack clear procedures in applying this standard to ensure the timely and comprehensive review of parole requests for people seeking asylum. Detention is an extreme and inhumane measure that often exacerbates the trauma already experienced by people fleeing persecution from their home countries. Instead, parole should be the first option considered immediately after a positive credible fear determination, and ICE officers should be required to clearly specify and support the reasons for rejecting a release request.
The Bad
In a move that will surely cause harm to immigrants, DHS has failed to incorporate NYLAG’s comments warning against a new streamlined process for initiating removal proceedings against asylum-seekers. This process would deny asylum-seekers the right to seek alternate relief from removal and would establish accelerated timelines for the adjudication of asylum applications by USCIS and the Executive Office for Immigration Review (EOIR). Here’s how the “streamlined” processes envisioned in the interim final rule are likely to make the system much harder to navigate for people seeking asylum.
The Interim Final Rule Accelerates the New Asylum Merits Interview Process
Under the proposed 8 C.F.R. § 208.9(a)(1), “USCIS shall not schedule an Asylum Merits interview for further consideration of an asylum application following a positive credible fear determination fewer than 21 days after the noncitizen has been served a record of the positive credible fear determination. The asylum officer shall conduct the interview within 45 days of the date that the positive credible fear determination is served on the noncitizen, subject to the need to reschedule an interview due to exigent circumstances.” Under the proposed 8 C.F.R. § 208.9(e)(2), the interim final rule further provides that, “in the absence of exigent circumstances, an asylum officer shall not grant any extensions for submission of additional evidence that would prevent a decision from being issued to the applicant within 60 days of service of the positive credible fear determination.”
The interim final rule’s “streamlined” Asylum Merits interview process that takes place within weeks is unreasonable and unfair. It will limit applicants’ ability to access legal services and meaningfully prepare their asylum claims. People seeking asylum often face trauma, difficulty accessing counsel, and are required to collect and organize documentary evidence in support of their claims for protection. For those who find counsel, it can take many meetings, over the course of many months, to develop a trusting relationship that allows a person seeking asylum to fully tell his or her narrative. For asylum-seekers, this often happens in conjunction with seeking mental health therapy, And for the attorney, preparing legal arguments requires in-depth development of the factual record and analysis of country conditions, which also requires time. The interim rule’s timeline of adjudication of asylum would prevent applicants from adequately preparing their cases, and deny them a meaningful chance to be heard.
The Interim Final Rule Fast Tracks Removal Proceedings Before an Immigration Judge
Under the interim final rule, immigration court review of a denied asylum application would be subject to a similarly truncated deadline, unfairly constraining due process. As a relief to advocates, DHS has declined to adopt the initially proposed cursory immigration court “review” process outlined in 8 C.F.R. §§ 1208.2(c) and 1003.48. But before allowing us to take a collective sigh of relief, the regulation establishes a dangerous form of Immigration and Nationality Act (INA) §240 removal proceedings on overdrive.
Under the new proposed 8 C.F.R. § 1240.17, a person seeking asylum would have their first hearing in front of a judge within 30 days of being referred to immigration court. 30 days later, they would get a single status conference where they would submit any new evidence in their case. One month after that (just 90 days after receiving the decision from their Asylum Merits interview), they would have an individual hearing on their asylum application in front of the judge. Although asylum seekers would be able to request an additional 30 days to prepare for their case, the rule makes it difficult to obtain any extra time after that.
While NYLAG supports the decision that these cases are adjudicated in INA §240 removal proceedings in lieu of new proceedings, to adjudicate these cases on an accelerated time frame would undermine the procedural protections these proceedings typically provide. For example, NYLAG client M fled his home country of Russia after being persecuted his entire life for sexual orientation and perceived lack of masculinity. Before fleeing, M identified as a gay man. It was only after a significant period of time in the United States, during which M was able to connect with mental health services and community resources, that M realized that M had been internalizing the persecution suffered over a lifetime and had been suppressing a true identity as a trans woman. Given the complexity of the claim, M would not have been able to present a full and accurate explanation as to the reasons for being so fearful of return to Russia if the time to prepare the case had been on the accelerated time frame proposed by 8 C.F.R. § 1240.17.
The Interim Final Rule Would Exacerbate Existing Notice Issues
Under proposed 8 C.F.R. § 208.14(c)(5), any individual who is unsuccessful at the asylum hearing stage “will be provided a written notice of the decision” and provided 30 days to “affirmatively request” review of the decision by an immigration judge. Pursuant to proposed 8 C.F.R. § 208.19, the written notice must be provided “in-person, by mail, or electronically.” This proposed provision will likely cause asylum seekers to not receive individualized notice of these decisions due to inaccurate information systems.
In New York City, it has been our experience at NYLAG that immigration courts have repeatedly failed to ensure that EOIR provides hearing notices to people seeking asylum and their counsel. This practice has been exacerbated since COVID-19, where extreme housing insecurity has forced many people to move during the pandemic, and where the courts have routinely failed to timely process changes of address. Given chronic infrastructural failures, it is reasonably likely that the proposed regulations would result in removal orders that deny any protections to ensure meaningful review.
How to Take Action
As immigration law advocates, we can take action by urging the Biden administration to eliminate these harmful provisions in its final rule. Read the entire interim rule here and make your voice heard by submitting a comment on or before May 31, 2022.
