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Borderlands Resource Initiative Urges Public Comment on DHS's New Proposed Asylum Rule
The Borderlands Resource Initiative (BRI) expresses deep concern over the Department of Homeland Security’s (DHS) newly proposed rule that permits the application of certain disqualifying factors (known as "bars") during credible fear screenings for asylum seekers requesting protection. This rule represents a significant shift in the asylum process and raises significant fairness and human rights issues, as well as potentially endangering the rights and safety of those seeking refuge in the United States.
Background on the New Rule
On May 9, 2024, DHS announced a proposed rule that would permit Asylum Officers to determine the applicability of statutory bars to asylum during their initial fear screening, which is a formal evaluation conducted by a United States Citizenship & Immigration Services (USCIS) asylum officer. These screenings are used to determine the probability that an asylum seeker will be found eligible for asylum or otherwise determined by an immigration judge to be eligible for protected status in the United States. By applying these bars early in the process, DHS intends to expedite the removal of individuals who are presumed ineligible for asylum, in theory making the system more efficient and reducing the backlog of cases. However, as with any expedited removal process, the likely outcome of this proposed rule change is that many migrants will be wrongfully prevented from accessing legal counsel or having the opportunity to present evidence and testimony in immigration court, and will instead be sent back to violence and harm. This risk is heightened for asylum seekers who are rare language speakers, indigenous, black, or from another marginalized community.
Understanding the Proposed Rule
These bars are designed to ensure that individuals who pose a threat based on past actions or who have already found protection elsewhere do not receive asylum or withholding of removal in the U.S. The application of these bars during the initial screening process aims to streamline the removal of ineligible applicants early in the process, potentially before they enter into the more resource-intensive phases of the asylum process. The regulation would give asylum officers increased discretion to apply specific disqualifying factors during preliminary screenings. These mandatory bars are specific conditions under U.S. law that, if met, automatically disqualify an individual from being granted asylum or statutory withholding of removal. Historically, these bars have been determined at a higher level of evidentiary review, such as in immigration court or at the highest level, the Board of Immigration Appeals.
Here are the bars expected to be evaluated by asylum officers and applied under this rule:
Persecution of Others: This bar applies to individuals who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. This standard has traditionally been determined in immigration court upon preponderance of evidence, not within the more cursory initial fear screening.
Particularly Serious Crimes: This includes individuals convicted of a particularly serious crime that constitutes a danger to the community of the United States. This conviction is generally within U.S. courts, but a conviction of the same type of crime in a foreign court may apply if the prison term was served or completed within the last 15 years.This determination particularly refers to offenses that would be considered an aggravated felony in the U.S. justice system, but the Attorney General reserves the right to identify other offenses that could be elevated to the same standard.
Serious Non-Political Crimes Outside of the United States: This bar applies to those who have committed a serious non-political crime outside the United States prior to arriving and requesting asylum. It generally pertains to particularly egregious crimes that are particularly egregious and are not directed by a foreign state or politically motivated.
Danger to the Security of the United States: This bar is used for individuals who there are reasonable grounds to believe are a danger to the security of the U.S. The Attorney General in 2005 previously defined this as “any nontrivial level of danger” to the “defense, foreign relations, or economic interests” of the U.S., but this standard has also been held in federal appellate courts to be a provable actual threat, not speculation alone.
Terrorist Activities: This includes individuals who are believed to have engaged in terrorism or are likely to engage in terrorist activity. The definitions and applications can be quite broad and encompass a range of activities and associations.
Firm Resettlement: Although not directly highlighted in the initial fear screenings under the new rule, this existing bar applies to those who had already resettled in another country before arriving in the U.S., where they were offered permanent resident status, citizenship, or some other permanent resettlement.
Impact on Asylum Seekers
Language Access in Expedited Processes
The analysis raises concerns that allowing asylum officers to apply these bars during initial screenings could lead to erroneous denials. The complexities involved in assessing these bars, coupled with the lack of legal representation for asylum seekers during these screenings, heightens the risk of incorrect decisions.
This risk is particularly high for asylum seekers who are further marginalized when attempting to present their cases for asylum in languages other than their native language, a situation that has been well documented by Americans for Immigrant Justice (AIJ) as they have attempted to fill the gap for pro bono legal services providing legal orientation, consultation and representation to families enrolled in the Family Emergency Removal Management program (FERM), a different Biden administration expedited removal program that targets families with minor children. In AIJ’s findings, they report having “seen a high number of rare-language speakers enrolled in FERM who, after stating that their best and preferred language was a rare-language, were guided by [asylum officers] to proceed in the Spanish language. Many of these families were subsequently issued negative [Credible Fear Interview] and [Negative Credible Fear Review] determinations.”
Efficiency
There is a credible concern that this change might make the asylum process more inefficient and inconsistent. As the policy goal appears to be leveraging mandatory bars to increase the number of denials at the initial stage, this rule will likely exacerbate the already significant capacity challenges within the U.S. asylum system. As indicated in a statement from the American Immigration Council, “[w]hen the U.S. government adds additional components to a screening interview, it decreases the possibility that someone will pass, but it also forces the asylum officer to take longer conducting and adjudicating the interview. DHS acknowledges this in its Federal Register notice; by allowing asylum officers discretion about whether to consider the bars, it says, it preserves “operational flexibility” so that interviews can be conducted more quickly when needed. However, this, like the 2023 regulation, may decrease the number of interviews officers can conduct on the margin.”
Concerns About Discriminatory Impact
Consistent with concerns raised by other human rights organizations, BRI is particularly alarmed by the potential for discriminatory impacts on black asylum seekers and other marginalized groups. Historical data suggests that these groups already face disproportionately high rates of negative credible fear determinations and low asylum grant rates, and the new rule could exacerbate these disparities, further hindering their access to fair asylum procedures. In a Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination (CERD), a coalition including Black Alliance for Just Immigration (BAJI) and Haitian Bridge Alliance (HBA) reported that "Credible fear screenings, which Congress intended to apply 'a low screening standard,' are supposed to ensure that people seeking refugee protection in the US have an opportunity to apply for asylum and are not summarily deported to persecution or torture. However, these screenings are inherently flawed, resulting in erroneous negative determinations and deportations of refugees without access to the asylum process with a disparate impact on Black asylum seekers."
Preserving Due Process
BRI stands firm in its commitment to advocating for procedures that ensure due process and equitable treatment for all asylum seekers. The complexities of the legal bars involved, including those related to alleged criminal activities or national security concerns, require careful examination within a robust legal process—not a rushed screening lacking thorough judicial review. The proposed rule, which allows Asylum Officers to apply statutory bars during the initial fear screenings, could have severe implications for migrants fleeing persecution. The introduction of this rule could lead to premature denials of asylum, significantly affecting the most vulnerable populations without adequate legal representation or the ability to properly articulate their fears of persecution. During the implementation of expedited removal last year under the Circumvention of Legal Pathways Rule, the Associated Press reported The percentage of people who passed asylum screenings fell to 52% during the second half of May as the fast-track process picked up, down from 77% the second half of March, just before it began.
Family Separations
Current Customs and Border Protection (CBP) policy is to separate newly arrived asylum seekers by gender during processing, which includes separating married couples and frequently processing fathers alone while keeping minor children with their mothers. As tracked, and reported by the American Civil Liberties Union, "CBP policy maintains that people should not be detained for longer than 72 hours in these facilities, often small, frigid holding cells commonly referred to as hieleras ('freezers' in Spanish). CBP, however, regularly detains people for as long as 10 days, and in many cases, for over 30 days." It is during this traumatic holding period that many of the expedited CFIs will take place, while family members are still separated from each other.
The proposed rule risks increasing family separations by applying different credible fear outcomes to family members during this transitional holding. Situations have already been documented where some family members were granted asylum while others are denied and deported back to dangerous conditions in their home countries. DHS should ensure that the asylum process prioritizes family unity and implements policies that prevent such separations, allowing families to stay together throughout the process.
Call for Advocacy
As part of our response, BRI urges the public, legal advocates, and community leaders to engage in the public comment period to express their opposition to the rule. It is crucial to participate in this democratic process to safeguard the rights of asylum seekers and ensure that our asylum system remains a beacon of hope and refuge.
The full rule is available to review on the Federal Register, and comments can be posted until June 12th, 2024. Your voice is important. DHS is required to review every single public comment submitted during the review period and produce a report outlining significant issues raised, as well as any changes made to the proposed rule based on the comments.
The Borderlands Resource Initiative calls on the Biden administration to reconsider the implications of this proposed rule and to uphold America’s long-standing commitment to protecting the vulnerable. We will continue to work tirelessly to ensure that our asylum system remains just and accessible to all who seek safety on our shores.
Sample Comments
Explore sample language for each identified humanitarian issue by clicking on the links provided below. Use the provided sample comments as a guide, but please take a moment to rephrase them in your own words. Personalizing your comment ensures it is unique and resonates more deeply with decision-makers, and using your own voice and perspective helps demonstrate the diversity of the immigration advocacy movement.
Language Access
I am deeply concerned about the proposed rule's impact on asylum seekers who are rare and indigenous language speakers. The documented lack of adequate interpretation services during expedited processes can lead to significant misunderstandings and wrongful denials. Asylum seekers come from diverse linguistic backgrounds, and may not be able to conduct a legal interview in a secondary language. It is crucial that asylum seekers have access to translation and interpretation services in their native languages to fully understand and respond during their credible fear interviews, which is unlikely to be possible in expedited removal processes in DHS custody.
Asylum Processing Delays
Discrimination Risks to Black Migrants
Access to Counsel
Family Separation Risks
Limiting Access to Asylum
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