The Biden administration unveiled a proposal Wednesday to speed up decisions on asylum claims by giving Department of Homeland Security officers the power to grant asylum to those at the border — including illegal immigrants — without having to go through an immigration court.
The new proposed rules would also give Homeland Security the power to “catch and release” people who ask for asylum when “detention is unavailable or impracticable.”
Officials described the changes as a way to get more certainty into the asylum system, so those who have valid claims can get a quick ruling and get on with their lives.
But analysts said shifting the initial decisions from judges to Homeland Security officers is a backdoor way to get more applications approved. And they said those who are denied still will be allowed to appeal to an immigration judge, meaning those with weak claims can still initiate lengthy immigration court cases to keep a foothold in the U.S.
Officials said they were publishing a notice of proposed rulemaking, which is a fairly early step in the process. The proposal will be open for public comment before being finalized.
In going through those steps, the administration is hoping to avoid the legal problems that have plagued Presidents Obama and Trump, and now President Biden, who have seen major immigration plans shot down by judges who said too many corners were cut.
Homeland Security Secretary Alejandro Mayorkas said the new proposal will ensure “fundamental fairness” for asylum seekers.
“Individuals who are eligible will receive relief more swiftly, while those who are not eligible will be expeditiously removed,” he said. “We are building an immigration system that is designed to ensure due process, respect human dignity and promote equity.”
Administration of the immigration system is currently divided between the Justice and Homeland Security Departments.
When someone jumps the border and then makes a claim for asylum, the matter goes first to an immigration officer, usually with U.S. Citizenship and Immigration Services (USCIS), who decides whether the applicant has a “credible fear” of being sent back home. That’s a relatively low bar and if people clear it, they are usually allowed into the country to make a full asylum claim before immigration judges, who report to the Justice Department.
Many people who claim they fear being sent back home never bother to make an asylum claim. They were using the fear declaration as a way to gain a foothold in the U.S.
And most credible fear cases do not end up being granted asylum by immigration judges.
Under the new proposal, the USCIS immigration officers would make the “credible fear” determination and then make the initial asylum decision.
If the claim is approved, the case is closed and the person is allowed to remain in the U.S. on a path to citizenship. If the USCIS officer denies the claim, the applicant can appeal to the Justice Department’s immigration courts, where the case will be heard again from the beginning. If that appeal is denied, the migrant can file another appeal with the Board of Immigration Appeals.
USCIS asylum officers already oversee cases that arise in the interior of the country, but border-jumpers have been handled differently because they are put into speedy deportation proceedings and their claims are judged “defensive,” as a means of blocking that deportation.
Immigrant-rights activists say judges are too strict. They are hoping that USCIS officers will deliver more favorable outcomes in more cases up front.
Asylum is supposed to be a humanitarian relief for people fleeing government persecution in their home countries. It is similar to refugee status, though in the U.S. system refugees apply from outside the country, while asylum-seekers are already on U.S. soil.
Asylum law has become complicated in recent years, with some courts approving claims for people who faced gang violence or were in abusive domestic relationships — something critics say goes beyond the intent of asylum law.
Migrants jumping the U.S.-Mexico border have also discovered the asylum system can be used to delay deportation, and case numbers have ballooned, creating a backlog that gives even more incentive to file bogus claims, since it can take years to reach a conclusion.
That also means those with valid claims have to wait years before they win their cases and get the certainty that asylum brings.
The Migration Policy Institute said the new proposal could be a “game-changer” for asylum seekers.
Doris Meisner, a former director of the Immigration and Naturalization Service who is now at MPI, said asylum officers have better training than judges to make these kinds of decisions. She had proposed a similar system in a 2018 report.
“Today’s asylum system is failing both by undermining U.S. obligations in domestic and international law to protect those fleeing from persecution and by undermining the ability to ensure orderly and predictable control of entries at the border,” she said in a new commentary for MPI.