New Asylum Rule Imposes Counterproductive Rocket Docket Adjudications that Threaten Accurate Asylum Decisions

Human Rights First expresses grave concerns about a number of harmful provisions in the new interim final rule, and urges the Biden administration to eliminate these in its final rule, including those that:

• Impose unrealistic and unfair timelines that risk rushing cases through adjudication procedures without sufficient time to secure legal representation and to gather and submit evidence necessary given the highly complex and unduly onerous requirements of U.S. immigration law;
• Create more limited so-called “streamlined” removal proceedings that allow immigration judges to deny asylum-seekers a hearing in their case and impose unreasonable hearing and filing deadlines;
• Significantly restrict asylum office reconsideration of credible fear denials—a crucial safeguard that has spared many asylum-seekers from mistaken deportation to their country of persecution due to flawed expedited removal orders—by barring asylum-seekers—who are overwhelmingly unrepresented by legal counsel during the credible fear process—from requesting reconsideration more than seven days after an erroneous decision is affirmed by an immigration judge and limiting asylum-seekers to only one request for reconsideration; and
• Use the fatally flawed framework of expedited removal to refer asylum-seekers for full asylum interviews—an inefficient use of the asylum office’s resources—rather than doing so through steps that do not undermine due process and impede access to asylum.

Human Rights First welcomes improvements made by U.S. agencies to the August 2021 proposed rule in response to comments by Human Rights First and other organizations including changes that:

• Preserve access to removal proceedings for asylum-seekers under the Immigration and Nationality Act and their right to present evidence during immigration court hearings (although creating unfair hearing and filing timelines) and create a formal status conference mechanism;
• Preserve requests for reconsideration of erroneous negative credible fear determinations (although imposing limitations that will prevent many asylum-seekers without legal counsel from requesting such review);
• Recognize DHS’s statutory authority to release asylum-seekers from detention for humanitarian reasons or in the public benefit pending a credible fear interview; and
• Retain the ability of an applicant’s attorney to make a statement and ask clarifying questions at the conclusion of an asylum interview.

In implementing any changes to the U.S. asylum process, Human Rights First urges the administration to engage and coordinate immediately with legal service providers across the country to bolster efforts to ensure access to counsel, provision of crucial legal information, and protection of asylum-seekers’ due process rights.

Human Rights First recommended improvements and revisions to the proposed rule in its October 2021 comment on the proposed rule. In its comment, Human Rights First welcomed efforts to provide initial asylum assessments in a less-adversarial setting, but has stressed that such reform should not be premised on the use of the fundamentally flawed expedited removal system. Human Rights First also issued recommendations outlining steps the Biden administration should take to improve the fairness and timeliness of the asylum system, to address the backlogs and delays that plague the system, and to treat refugees humanely and in line with U.S. law and treaty obligations.

Human Rights First published an October 2021 analysis explaining why the proposed rule’s elimination of the asylum office’s long-standing authority to reconsider erroneous credible fear decisions would result in the return of asylum-seekers to persecution. Additionally, Human Rights First has published a December 2021 analysis explaining why immigration judge review has proved to be and remains an insufficient safeguard against refoulement.

Human Rights First works with volunteer lawyers at many of the nation’s leading law firms to provide pro bono legal representation to refugees seeking asylum and has thirty years of experience representing refugees in U.S. asylum proceedings.