DHS Releases Overhaul of Fast-Track Asylum System

On March 29, 2022, the Biden administration released a rule revising the fast-track asylum system in an effort to speed up the process and reduce pressure on the country’s severely overburdened immigration courts.

The new policy was issued as an interim final rule by the Department of Homeland Security (DHS), which houses USCIS, and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees the US immigration court system. The rule applies to people seeking asylum who are subject to a fast-track deportation process known as “fast-track removal” and is set to come into effect on May 31, 2022.

Under the new rule, some asylum seekers who express a fear of persecution if returned to their home country will have their claims decided by USCIS asylum officers instead of USCIS judges. immigration. The government’s intention is to avoid adding more cases to the country’s immigration court backlog, which currently stands at more than 1.7 million. Pending asylum cases alone account for almost 40% of the immigration court backlog, with more than 70% of these cases being defensive applications (i.e. in response to initiation by DHS of deportation proceedings against the asylum seeker).

While the overhaul asylum rule appears to have some benefits, such as increased speed through the system for asylum seekers with very strong cases, immigrant rights advocates and lawyers have also expressed concern that the program will rush people with complicated asylum claims through the legal process. without the time needed to hire a lawyer or prepare their case.

In a statement, DHS Secretary Alejandro N. Mayorkas says the rule will lead to a more efficient asylum system, promising that USCIS and EOIR “will process requests for asylum or other humanitarian protection quickly and efficiently while ensuring due process”.

However, for the plan to work on a large scale, the government needs to hire at least 800 new asylum officers, with workloads hovering around 75,000 new asylum applications per year. Given this ongoing need to hire asylum officers, as well as the historical difficulty of staffing the immigration agency and courts, some advocates worry the plan lacks the resources to administer. effectively the asylum system to vulnerable migrants.

Additionally, given that the affirmative asylum backlog at USCIS is nearly 432,000 cases, the addition of tens of thousands of new cases from the CFI process will undoubtedly increase backlogs within the division of USCIS asylum, while potentially lengthening wait times for other immigrant groups as USCIS reallocates internal resources.

As mentioned above, despite these concerns, the rule brings positive changes.

As a starting point, the rule largely restores the CFI process to its pre-state as the Trump administration made restrictive changes beginning in 2017 and continuing through the end of his presidency.

The new rule also fills a loophole that the previous administration exploited to allow U.S. Border Patrol agents to conduct CFIs, rather than USCIS-trained asylum officers. The new rule fills this gap by helping to ensure that migrants’ asylum claims are heard by a trained and knowledgeable USCIS officer familiar with US asylum law.

Additionally, if a person obtains a “positive” CFI, which means the asylum officer has determined that the person has a well-founded fear of persecution, rather than being placed directly into court deportation proceedings of Immigration, where she must file a defensive asylum claim on Form I-589 within one year of the CFI, the new rule sends the asylum seeker to an Asylum Merits Interview (AMI), also conducted by a USCIS asylum officer.

AMI is a non-adversarial process, which means that it is an interview to determine if the applicant is eligible for asylum, and is not structured in such a way that the plaintiff must defend themselves or be cross-examined by a “prosecutor” or DHS attorney. . Above all, the applicant will have the possibility of having a lawyer present during the AMI.

Under the new rule, immigrants who have a well-founded fear of persecution can be granted asylum at the AMI stage, which will end the case in favor of the asylum seeker, without having to also file a I-589 affirmative asylum application or to wait years for a hearing in one of the immigration courts.

However, it is important to keep in mind that USCIS asylum officers currently only grant asylum in about 22% of cases. Although the asylum rate in immigration courts has risen from 29% under President Trump to 37% under President Biden, USCIS has only approved 18% of asylum applications from Form I-589 in fiscal year 2021, and just over 22% so far in fiscal year 2022. Because of these low grant rates by USCIS asylum officers, it is unlikely that a majority of people subject to this new expedited asylum process will be successful at the on-site interview. asylum background.

Applicants who are not granted asylum as an AMI will still be referred to Immigration Court, where they will have the opportunity to re-argue their case and seek other forms of humanitarian assistance. such as suspension of removal or protection under the UN Convention against Torture.

The new asylum rule significantly speeds up this timeframe, aiming for asylum seekers to attend the asylum merits interview between 21 and 45 days after their credible fear interview, and an initial hearing in immigration court 30 to 35 days after being refused asylum at AMI. The new rule also adds a pre-trial status conference — a new concept in immigration proceedings — which takes place 30 days after the initial hearing (called the Master Schedule Hearing, or MCH), and the “trial.” full or individual schedule hearing, will take place 30 days after. Essentially, the new rule aims to take a process that, given the current backlogs, takes between 2 and 6 years, and reduce it to 2 to 4 months.

Whether this is feasible remains to be seen; In the meantime, immigration advocates are preparing to submit additional comments on the rule to DHS and the Department of Justice before the rule is finalized on May 31, 2022, and attorneys are preparing to help applicants for Haven to navigate another technical change to an already complicated situation. system.

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