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October 18, 2021

Human Rights First Comment on Asylum Process Notice of Proposed Rulemaking

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 proposed rule on the asylum process published in the Federal Register on August 20, 2021. The Notice of Proposed Rule Making (NPRM or proposed rule) sets forth a new process to adjudicate asylum claims for some asylum seekers who have received positive credible fear determinations and who may be referred for asylum “hearings” before the U.S. Citizenship and Immigration Services (USCIS) Asylum Office among other changes to the asylum process. 

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Overview of Comment

Human Rights First welcomes many of the changes proposed in this rule but is gravely concerned about provisions that propose to deprive asylum seekers of access to immigration court removal hearings and eliminate a safeguard that has spared many asylum seekers from deportation to their country of persecution due to flawed expedited removal orders. We recommend changes to the proposed rule, outlined below, to better achieve the goals of conducting timely and fair asylum adjudications, reducing the Asylum Office and immigration court backlogs, and treating refugees humanely and in line with U.S. law and treaty obligations. Human Rights First’s recommendations are informed by its expertise on refugee law and treaties, and its years of providing pro bono legal representation to asylum seekers at all stages of the asylum process – including in expedited removal and credible fear proceedings, in Asylum Office interviews, before the immigration courts and on appeal. 

Human Rights First has previously recommended that asylum adjudications be upgraded so that the USCIS Asylum Office adjudicates all (rather than just some) asylum cases initially and grants cases qualifying for refugee protection instead of referring grantable cases to the immigration courts, which would greatly reduce the numbers sent into immigration court removal hearings. Such a system would not only be more efficient and help reduce backlogs and delays, but it would also enable more asylum seekers to have their cases resolved through a non-adversarial and less intimidating interview.

The main reason to favor Asylum Office interviews over immigration court hearings as the initial method of adjudicating refugee claims is the interview’s potential for a less intimidating, more conversational format. An overarching concern of Human Rights First about this proposed rule, and in particular its attempt to limit the scope of immigration court review for cases of asylum seekers not granted at the asylum office level, is that in order to create a record that would allow for meaningful review by an immigration judge and for further review thereafter, the asylum interview would have to be changed in ways that would sacrifice the very qualities that make the asylum office humane.

Efforts to provide asylum seekers an opportunity to first present requests for asylum in a setting that is less adversarial than the immigration courts and provide more timely adjudications should not be embedded in the fundamentally flawed and inefficient expedited removal process. The proposed rule should accordingly be revised to implement referrals to the Asylum Office in a way that is not tied to the use of expedited removal, as explained below. In addition, the rule should include, and USCIS should implement, additional reforms to ensure that more cases that qualify for refugee protection are actually granted by the Asylum Office, rather than being referred for immigration court adjudications which could have been averted if an accurate decision had been rendered initially by the Asylum Office. For example, 76 percent of cases that asylum officers did not grant after interview were subsequently granted asylum by the immigration courts from Fiscal Year (FY) 2012 to 2016, confirming what Human Rights First sees regularly in its own legal representation work – that the Asylum Office itself often fails to grant many qualifying cases, adding tremendously to inefficiencies and delays in the asylum system and needlessly traumatizing asylum seekers whose cases could have been instead granted by the Asylum Office.

As asylum officers regularly fail to grant qualifying cases initially and in order to uphold due process, the safeguard of a de novo immigration court hearing is crucial. Human Rights First is gravely concerned and alarmed that the proposed rule seeks to curtail asylum seekers’ access to immigration court hearings (for those not granted by the asylum office). This proposal would deprive asylum seekers found to have credible fears of persecution of access to an immigration court hearing, even though members of Congress made clear they intended to preserve access to such hearings, as explained below. We urge that access to full removal hearings be preserved, rather than creating a whole new system of limited immigration court “reviews” that would restrict the evidence and testimony asylum seekers can present.

The proposed rule would attempt to turn Asylum Office interviews into “hearings,” but a new label and changes to some procedures do not create a formal court hearing. Instead, the Asylum Office “hearings” would risk creating an unnecessarily confrontational interaction and losing many of the efficiencies that should otherwise allow asylum officers to handle large numbers of cases more swiftly. The “hearing” would serve as an asylum seeker’s last real chance at demonstrating their asylum claim, as the proposed rule eliminates a full hearing on the asylum claim before the immigration court. The experts cited in the proposed rule’s explanatory section recommending initial Asylum Office adjudications–including the bipartisan U.S. Commission on International Religious Freedom (USCIRF), the Administrative Conference of the United States, and the Migration Policy Institute–did not recommend curtailing access to immigration court hearings, and in fact indicated their continued availability, as the NPRM acknowledges. De novo immigration court consideration of asylum cases referred by the Asylum Office is a crucial due process safeguard that guards against wrongful deportations of refugees to persecution and torture.

Curtailing access to immigration court hearings and allowing only abridged or limited hearings is unjustifiable. This aspect of the proposal appears aimed more at sending a political message that some parts of the process will be made more difficult for asylum seekers, rather than making the asylum system more fair, accurate, timely and effective. Politicized attempts to speed up processing have–again and again–proven counterproductive and exacerbated backlogs and delays. Moreover, the delays and backlogs in the immigration courts were not caused by the fact that an asylum seeker can, for instance, introduce evidence or call witnesses. A number of factors contributed to the growth of these backlogs, including failures to adequately staff and promptly hire at the immigration courts to manage caseloads, logjams caused by sharp disparities between massively increasing funding for enforcement agencies and lagging funding for adjudications, and repeated attempts to pressure immigration judges to speed up adjudications, as Human Rights First has detailed repeatedly as it urged various administrations and Congress to take action.

Backlogs in the immigration courts and Asylum Office hurt asylum seekers, as many of Human Rights First’s clients have explained in our reports detailing recommendations to address these challenges. Adjudication delays leave asylum seekers in legal and psychological limbo, separated from family, limited in the educational and professional opportunities they can pursue, and unable to begin to rebuild their lives in the United States. Addressing and remedying these backlogs and delays should be a top priority for both the administration and Congress. Instead of depriving asylum seekers of due process and the safeguard of immigration court removal hearings that reduce the risk that refugees will be wrongly deported to persecution, Human Rights First urges that the rule require steps that will ensure immigration court hearings are conducted more effectively, efficiently, and humanely, including requiring preliminary conferences and ensuring judges’ ability to manage their dockets.

Instead of a plan premised on curtailing access to due process hearings and entrenching due process deficient expedited removal, Human Rights First continues to urge an upgraded, fair, accurate, effective and timely asylum system with changes to ensure, among other critical reforms, that: (1) the USCIS Asylum Office adjudicates all asylum cases initially (not via expedited removal) and actually grants cases qualifying for refugee protection, rather than punting so many to the immigration courts; (2) Immigration court hearings are upgraded and made more efficient, including by requiring preliminary conferences and ensuring judges’ ability to manage their dockets; (3) increased staffing across the asylum office and immigration courts boosted to decide both incoming and backlogged cases–and improved translation at both the asylum office and immigration courts. Human Rights First has outlined its detailed recommendations in blueprints, an asylum office backlog paper and a paper on the immigration courts issued earlier this year along with the Center for Gender and Refugee Studies–and identifies in Section VII and throughout this comment key reforms that should be implemented, including through this rule.

Human Rights First welcomes many provisions of the proposed rule relating to the conduct of expedited removal – a fundamentally flawed process that Congress should eliminate. For instance, we support proposed rule provisions that would undo changes made by the Trump administration to attempt to alter the credible fear standard and to use expedited removal as a tool for preventing refugees from seeking asylum. These welcome changes include requiring that USCIS asylum officers conduct fear screening interviews, eliminating consideration of many of the bars to asylum during preliminary screening interviews, allowing asylum officers to include accompanying family members within an applicant’s fear determination to promote family unity, and considering positive credible fear determinations to meet the requirements of the one-year filing deadline and to start the waiting period for employment authorization, among other positive proposals.

However, Human Rights First strongly objects to the proposal to eliminate the ability of the Asylum Office to correct a mistaken credible fear finding through requests to reconsider a determination by one of its officers. This safeguard has saved many lives by preventing the expedited removal of asylum seekers who meet the relevant standards for asylum, as explained below. Substantially improving the quality and accuracy of Asylum Office credible fear determinations and immigration court reviews of such determinations would be the most effective way to make such requests for reconsideration much less necessary.

In addition, as detailed below, Human Rights First suggests additional changes to ensure that asylum seekers are eligible for and are released on parole to avoid needless and harmful jailing of refugees seeking protection in the United States. Human Rights First also suggests additional measures that could help limit the harms of expedited removal. Even with these reforms to expedited removal, as long as this process remains in law and in use, the United States will continue to risk returning refugees to persecution in violation of its refugee treaty commitments against refoulement.

We applaud the administration for issuing this regulation as a proposed rule and providing the public an opportunity to comment before putting this rule into effect – a welcome change from the prior administration and its recurrent attempts to illegally circumvent the notice and comment process. We note, however, that it is difficult to comment fully on the impact of the proposed rule without the benefit of reviewing and understanding its interaction with other rulemaking in the works on the expedited removal and asylum adjudication processes. 

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