The Biden administration’s overhaul of the asylum system went into effect for the first time on May 31, but only a limited basis. According to guidance published by the Department of Homeland Security, the rule will initially be applied to several hundred asylum seekers per month. The rule will only be for those who are processed at one of two Texas detention centers and—if they win their cases—intend to reside near one of six asylum offices, in Boston, Los Angeles, Miami, New York, Newark, or San Francisco.
Under the new rule, which was announced in late March, asylum seekers who pass a “credible fear interview” will no longer be sent directly to immigration court, where they are required to file an asylum application in English to seek asylum in front of a judge. Instead, they will first be sent to a U.S. Citizenship and Immigration Services (USCIS) asylum office for an “Asylum Merits Interview,” where their credible fear interview will count as their asylum application.
After a person has an “Asylum Merits Interview,” which is supposed to occur within 21 to 45 days of a credible fear interview, an asylum officer either grant or deny the person asylum. If the asylum officer grants asylum, then the person’s case is over and they’ve won in a matter of weeks as opposed to four to five years under the current system.
However, if the asylum officer denies asylum, then the person will be referred to an immigration court for an “expedited” process designed to resolve the case within two to four months maximum. Advocates have raised concerns that these timeframes will make it very hard for people to obtain lawyers, as there are few lawyers who are able to take asylum cases that have to be resolved in a matter of weeks.
Currently, most people who are encountered at the border are not getting “credible fear interviews.” Instead, they are being expelled under Title 42, sent back to Mexico as part of the Remain in Mexico program, or are being released directly at the border with a notice to appear in court. Given those limitations and the fact that this is a new program, DHS has indicated that it will roll out the program slowly.
Because of the geographic limitations of the program, the initial impact of the rule will be quite small, giving DHS and the immigration courts time to work out issues with the rule. In addition, the agency intends to amend the regulations in response to the dozens of comments it received after it announced the rule in March. Many of the comments highlight the concerns raised by the expedited timeframe, including access to counsel, the difficulty of obtaining evidence in a short period of time, and the ways in which the shortened timeframes will disadvantage individuals suffering from trauma.
However, the fate of the rule in the long term remains uncertain.
Two separate lawsuits, one filed by Texas and the other filed by 20 Republican state Attorneys-General, allege that the new asylum process is illegal. Their primary argument rests on a claim that the law which created DHS in 2003 forbid anyone other than immigration judges from hearing asylum applications of people who pass credible fear interviews. They also argue that the new rule will cause more people to come to the border, even though the rule does not affect border processing at all.
In both of those lawsuits, federal judges in Texas and Louisiana have yet to rule on the states’ request to block the rule from going into effect. That means that the Biden administration will be able to use the rule at least for a few weeks or months before any decision is likely.
If the Biden administration is blocked from carrying out this asylum rule, it could find itself stymied yet again in its attempt to modernize the asylum system. Although the rule has many flaws, it’s also the most ambitious attempt by any administration in 25 years to rethink how we adjudicate asylum claims for people who arrive at the border. Blocking the rule from going into effect would leave things at their chaotic status quo, and the Biden administration at square one.