Issue Brief
Published on May 31, 2022
Human Rights First submits these comments in response to the Department of Homeland Security (DHS) and the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) (collectively, the “agencies”) request for public comment regarding the Interim Final Rule (IFR) on the asylum process published in the Federal Register on March 29, 2022. The IFR amends the process first proposed by the agencies’ Notice of Proposed Rulemaking (NPRM) published on August 20, 2021 to adjudicate asylum claims for some asylum seekers who have received positive credible fear determinations and who may be referred for asylum merits interviews before the U.S. Citizenship and Immigration Services (USCIS) Asylum Office among other changes to the asylum process.
Overview of Comment
The IFR provides that asylum seekers who are placed in the expedited removal process and who establish a credible fear of persecution may be assessed in an initial, full asylum interview (“Asylum Merits Interview,” or AMI) by an asylum officer from USCIS. Cases not granted by the Asylum Office are referred to immigration court removal proceedings, as are other asylum cases that are not granted by the Asylum Office.
The agencies state that “[t]he principal purpose of this IFR is to simultaneously increase the promptness, efficiency, and fairness of the process by which noncitizens who cross the border without appropriate documentation are either removed or, if eligible, granted protection.” 87 FR 18089. However, concerning provisions in the IFR including the imposition of unreasonably fast deadlines would not only sacrifice fairness but would also thwart efficiency and exacerbate backlogs. These deadlines would discourage legal representation and likely spur inaccurate decisions, which will in turn lead to additional adjudications that would not have been necessary if the individual had had adequate time to prepare and obtain counsel and an accurate decision had been reached initially. Under the timelines imposed by the IFR, asylum seekers who establish a credible fear of persecution could be rushed through the new asylum process at the Asylum Office and denied protection by an immigration judge in as few as four months, leaving asylum seekers with inadequate time to find legal counsel, prepare their cases, and submit evidence.
Human Rights First welcomes improvements to aspects of the NPRM and strongly agrees that providing initial asylum merits interviews is critical to reducing immigration court backlogs, but is deeply concerned about—and urges revisions to—provisions in the IFR that raise serious due process concerns and would risk returning refugees to persecution and torture. The IFR imposes new unreasonable, unrealistic and unworkable deadlines for the Asylum Office interview process that were not included in the initial proposed rule, creates new immigration court rocket dockets and directs immigration court judges to order some asylum seekers removed without a full and fair hearing. The rule provides that the new asylum process will be conducted after subjecting asylum seekers to the fundamentally flawed expedited removal process, which has been shown time and again to return refugees to persecution and death, while also effectively gutting a crucial safeguard in the credible fear process.
Unless these concerning provisions are removed, asylum seekers will be rushed through adjudication without adequate time to secure legal representation, gather necessary evidence, and take other steps to prepare their cases given the complexity and requirements imposed by U.S. law and the adjudicating agencies—resulting in needless referrals to immigration court and administrative and judicial appeals required to correct erroneous decisions by the immigration court, whereas the case could have been resolved in the first instance by USCIS if provided with adequate time to prepare and obtain legal representation. Subsequent administrations might attempt to abuse this process to accelerate the wrongful deportation of asylum seekers without fair and meaningful asylum assessments. U.S. agencies should make it a top priority to work with Congress to provide funding for legal representation during this process, but such efforts will not remedy these unrealistic deadlines or lead to results in time to safeguard against the many resulting mistaken asylum decisions. The IFR also threatens asylum seekers’ statutory and constitutional right to a full and fair hearing by directing immigration judges to order some asylum seekers removed after a rushed status conference without conducting a full hearing on their request for asylum.
Human Rights First is also concerned that the adjudication process created by the IFR will be conducted after subjecting asylum seekers to the flawed expedited removal process. The agencies have indicated that they intend to conduct credible fear interviews of asylum seekers placed in expedited removal while the individual is detained, which drastically exacerbates the inherent flaws of this process. The agencies also indicate in the IFR that they intend to expand the use of expedited removal. 87 FR 18089. However, DHS is not required to use expedited removal, an unfixable process that has resulted in the return of refugees to persecution, torture, and murder, and should instead directly exercise discretion to refer asylum seekers to Asylum Office interviews without first subjecting them to credible fear interviews. The IFR further exacerbates the flaws in expedited removal by imposing severe limitations on the longstanding authority of the Asylum Office to reconsider a mistaken negative credible fear determination, setting an unworkable seven-day deadline for individuals to submit a request for reconsideration to USCIS and limiting asylum seekers to a single request, which will render this vital safeguard virtually meaningless for many asylum seekers who receive incorrect negative fear determinations. Conducting any portion of the asylum adjudication process while the individual is detained would further exacerbate the IFR’s unreasonable timeframes and increase the barriers to counsel for individuals moving through this expedited process.
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