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June 08, 2021

NGO Letter to DOJ and DHS on Reported New Asylum Process

Dear Attorney General Garland and Secretary Mayorkas:

As organizations that provide pro bono legal representation, assistance, and advocacy for individuals seeking asylum in the United States, we write to express our concerns that, according to a recent Buzzfeed News report, the Biden administration is considering plans to initiate new asylum processing potentially through an interim final rule, which would deprive the public of an opportunity for notice and comment. Based on the limited information reported, we are concerned the plan may include components that cut back vital due process protections. We urge the administration to adjust course and provide the requisite notice and comment period.

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Many of our organizations have previously urged the Biden administration to take steps - such as expanding the use of initial asylum eligibility interviews - to enhance asylum adjudications so they are more humane, fair, effective, and timely, including most recently in recommendations outlined in an April 15, 2021 letter. The Buzzfeed News report appears to indicate however that the administration’s plans may include limiting the role of immigration court hearings (to only a review of an asylum officer’s decision and not a de novo hearing) and continued reliance on the flawed expedited removal process, a policy that has already diverted asylum office resources and greatly contributed to the current asylum office backlog. Other key aspects of the plans, including timelines, deadlines, appeals, guarantee of counsel, and other due process safeguards, are unclear.    

We also reiterate our recommendations that Trump administration policies that block refugees from asylum or rig asylum adjudications against refugees be urgently rescinded, including continued misuse of Title 42 and prior Attorney General decisions that nearly eliminate asylum for those fleeing gender-based violence and gang brutality.

As the administration considers changes to the U.S. asylum system, it is critical for the Departments of Justice and Homeland Security to consult with stakeholders, refugee law experts, torture and trauma experts, and attorneys with extensive experience representing asylum seekers in these processes, as well as with asylees and asylum seekers who have first-hand experience with, and are most impacted by, U.S. asylum adjudications. We urge the administration to engage meaningfully to discuss options and potential consequences, ensure prior notice and meaningful comment given the significance of the potential changes, restart asylum consistent with our refugee law immediately, and improve the asylum system so that it is humane, timely, effective, and fair. 

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