Immigration Court Asylum Hearings Versus “Review” of Asylum Officers’ Decisions
Recent media reports and government documents indicate that the Biden administration may publish an Interim Final Rule (IFR) to create a new process for asylum cases originating at the southern border, raising concerns that the public will not have an opportunity to weigh in through the notice and comment process prior to implementation. Non-governmental organizations have recommended that the Biden administration take steps to make asylum adjudications more humane, fair, effective, and timely, including referring asylum seekers for full asylum interviews with U.S. Citizenship and Immigration Services (USCIS) asylum officers in their destination locations. These full asylum office adjudications should not be conducted within the expedited removal process, which undermines due process.
While some of the potential changes described in the media may have positive impacts, other aspects of the new procedure may raise significant due process concerns, including the use of expedited removal and language in media reports indicating that, if an asylum officer decides not to grant asylum, an immigration court could “review an asylum officer’s decision”— rather than referring to an immigration court hearing.
An effective and fair asylum adjudication system must provide an opportunity for a de novo immigration court hearing after an asylum seeker’s case is not granted by a USCIS asylum officer, rather than an immigration court “review” of the asylum officer’s decision. Depriving asylum seekers of immigration court hearings in such situations would diminish the efficiency and non-adversarial nature of asylum office interviews and risk erroneous decisions that return refugees to persecution and torture. Years of representing refugees who are erroneously denied asylum by the asylum office have illustrated to Human Rights First that immigration court hearings are critical to ensuring accurate refugee protection decisions. Human Rights First’s concerns about limiting immigration courts to “review” of asylum officer interviews include: