Biden Administration Poised to Eliminate Critical Safeguard Amid Escalating Reports of Erroneous Credible Fear Decisions

Across the country, non-profit legal services organizations and individual attorneys have received alarming recent reports of asylum seekers from Cuba, Haiti, Honduras, Nicaragua, Venezuela, and other countries – the small portion not blocked or expelled under Title 42 – being denied the opportunity to even apply for asylum through the Department of Homeland Security’s use of the fundamentally flawed expedited removal process. Asylum seekers who have received negative credible fear determinations, many of which have been affirmed (or upheld) after essentially “rubber stamp” review by an immigration judge, can be deported from the United States without an opportunity to submit an asylum application and go before an immigration judge for a full asylum hearing. The Biden administration is poised to make this situation even worse, proposing to eliminate a safeguard – requests for reconsideration to the U.S. Citizenship and Immigration Services (USCIS) Asylum Office of negative credible fear determinations – that can prevent the deportation of refugees to persecution and torture.

This factsheet explains – based on publicly available government data that was analyzed by a team from the Human Rights Center Investigations Lab at U.C. Berkeley – why immigration judge reviews of negative credible fear determinations are not sufficient to guard against wrongful deportations of refugees. These findings include:

• Analysis of immigration court data confirms that immigration judges continue to overwhelmingly affirm negative fear determinations – 72.4 percent of negative fear determinations were affirmed between Fiscal Year (FY) 2018 and FY 2021 (through August).
• In addition, in just the first seven months of the Biden administration, immigration judges have affirmed negative credible fear determinations for hundreds of asylum seekers from Cuba, Haiti, Nicaragua, and Venezuela – even though many people from these countries who are permitted to file asylum applications are granted refugee protection. For instance, in FY 2021, more than 72 percent of Venezuelan asylum seekers were granted refugee protection by U.S. immigration judges, according to government data analyzed by Syracuse University’s Transactional Records Access Clearinghouse (TRAC).

Rather than employing the highly flawed expedited removal process, which endangers the lives of refugees by blocking them from even applying for asylum, governmental resources would be better devoted to conduct full asylum office interviews (outside of the expedited removal process) for asylum applicants and, while expedited removal continues to exist, retain the safeguard of Asylum Office requests for reconsideration.