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Home / Testimony of Rob Berschinski before EU Parliament: “A U.S. Perspective on the EU Global Human Rights Sanctions Regime” / Biden Administration Move to Eliminate Requests for Reconsideration Would Endanger Asylum Seekers, Deport Them to Persecution and Torture
October 01, 2021

Biden Administration Move to Eliminate Requests for Reconsideration Would Endanger Asylum Seekers, Deport Them to Persecution and Torture

On August 20, 2021, the Biden administration published a Notice of Proposed Rulemaking (NPRM) on asylum processes that would eliminate the life-saving protection of asylum office requests for reconsideration of negative credible fear determinations, among other proposed changes. The proposed rule would eliminate a crucial asylum office safeguard to reconsider mistaken decisions regarding whether asylum seekers placed in expedited removal have a credible fear of persecution. At the same time that the rule could lead to a dramatic expansion in the use of expedited removal – a deeply flawed process that risks returning refugees to persecution and torture and whose deficiencies have been documented for decades. These changes would further increase the likelihood of wrongful deportations of refugees to harm.

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Shortly after the U.S. government began implementing expedited removal in 1997, the former Immigration and Naturalization Service (INS) clarified that it had authority to conduct a second credible fear interview and reverse a negative credible fear determination even if it had been affirmed by an immigration judge. After widespread reports of asylum seekers wrongly deported under expedited removal, and concerns about mistaken credible fear denials expressed by U.S. Senator Patrick Leahy on the floor of the Senate in September 2000, the INS published final regulations in December 2000 to make clear that the INS (later the Department of Homeland Security (DHS)) could reconsider a negative determination including after it had been affirmed by an immigration judge.

Like the Biden administration, the Trump administration also proposed to eradicate requests for reconsideration in a June 15, 2020 proposed rule that attempted to unlawfully rewrite asylum law and eviscerate virtually all protection claims (often referred to as the “death to asylum rule”), but ultimately excluded the change from the final regulation explaining that it had been made inadvertently. The Biden administration’s attempt to resurrect this harmful change – that even the Trump administration admitted was a mistake and declined to implement – will further magnify the risks of expedited removal, obliterate a crucial safeguard in an already dangerous system of fast-track deportations, and result in the return of refugees to harm in violation of the Refugee Convention and Protocol.

The Biden administration has detained thousands of asylum seekers and subjected many to expedited removal proceedings riddled with due process violations and unlawful and abusive conduct by government agents, highlighting the critical need for safeguards against erroneous credible fear decisions other than immigration judge review, which often serves as a rubber stamp. Asylum seekers harmed by egregious due process violations in expedited removal under the Biden administration include: a 13-year-old unaccompanied child illegally subjected to a credible fear interview; dozens of detained African asylum seekers and many others forced to have credible fear interviews (CFIs) in a language in which they are not fully fluent; and at least a dozen asylum seekers pressured to proceed with their credible fear interviews without counsel present – in at least one instance resulting in the wrongful deportation of a Nicaraguan asylum seeker who had been jailed for her political opposition to the current regime.

This factsheet documents a small fraction of the lives that have been saved through the critical safeguard of a request for reconsideration, including: an 18-year-old Venezuelan asylum seeker whose negative credible fear determination was reversed through a request for reconsideration filed the day before DHS was scheduled to deport him; a Nicaraguan asylum seeker who had been detained, beaten, stabbed, and tortured by police officers for participating in anti-government marches; a Haitian refugee who has since been granted asylum; an asylum seeker from Burkina Faso who had suffered attacks and threats after converting to Christianity; and an asylum seeker from the Ivory Coast who had been violently attacked for his political views.

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