The Biden administration on Wednesday proposed a rule that would streamline the asylum process, an effort to remove those fleeing persecution from an immigration court system backlog that can leave them in limbo for years on end.
The proposal, a joint effort from the Department of Homeland Security and the Department of Justice, allows most of the asylum process to be decided by officers at U.S. Citizenship and Immigration Services (USCIS), who conduct the first interview with those who say they cannot safely return to their country.
Though largely a bureaucratic shift, the shuffle could help asylum-seekers more quickly gain status instead of funneling them into the 1.3 million immigration court case backlog that would take four years to get through even without any new cases.
“A system that takes years to reach a result is simply not a functional one,” the agencies wrote in the rule. “It delays justice and certainty for those who need protection, and it encourages abuse by those who will not qualify for protection and smugglers who exploit the delay for profit.”
Still, some advocates fear the new process could deny due process rights for migrants, particularly as the Biden administration continues with fast-track deportations.
Asylum-seekers who arrive at the border must show they fear for their lives due to persecution based on their race, religion, political views or membership in a “particular social group” — a category often used by those fleeing gang violence and women seeking to escape domestic violence.
Under the current process, asylum-seekers must undergo a credible fear interview with a USCIS officer, but even then, they must formally apply and await their fate in the court system housed within the Justice Department.
If the proposal is finalized, USCIS officers could grant asylum, and any migrants who are denied could appeal the decision within the court system.
“There is a world of difference between going through the asylum process at USCIS, where an officer is probably trained on trauma informed questioning, versus going to court and having to face prosecutors challenging your statements and judge that may feel like a second prosecutor,” said Jennifer Whitlock, policy counsel with the American Immigration Lawyers Association.
Only those who cross the border after the regulation is finalized would be eligible, though unaccompanied children would still have to go through the full court process.
Still, some are concerned that the changes may limit access to asylum, which migrants otherwise must apply for within a year of crossing the border, giving them time to prepare evidence.
The policy shift comes against the backdrop of an administration that in July resumed fast-track deporations, which allow border agents to swiftly remove migrants who they do not believe have a credible fear of persecution, as well as Title 42, which allows expulsion without any ability to claim asylum.
“While we welcome efforts to provide initial asylum assessments in a non-adversarial setting, that reform should not be premised on the use of the fundamentally flawed expedited removal system,” Eleanor Acer, senior director for refugee protection at Human Rights First, said in a release.
“The proposed rule could be used and abused to rush asylum seekers through adjudications without sufficient time to secure legal representation, gather evidence or prepare their cases, leading U.S. agencies to return to persecution people who actually do qualify for asylum.”
--Updated at 1:00 p.m.
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