Biden Administration Announces Asylum System Review: What You Need to Know

On Thursday, the Biden administration announced the final version of the long-awaited asylum review in the United States, with the aim of speeding up processing at the border and alleviating backlogs in the country’s immigration courts.

Correction of asylum, a process that can go on for years, was one of President Biden’s election promises. The overhaul represents the most significant change in the nation’s immigration system since he took office.

The new policy will take effect on May 28, two months after its publication in the federal register. The change will not affect the majority of asylum seekers as long as a pandemic rule that restricts access to the border remains in place. But the new system will likely be in place once this rule is lifted and the rise in asylum applications begins.

“The current system for handling asylum applications at our borders has long been in need of repair,” said the Secretary of the Department of Homeland Security Alejandro N. Mayorkas in a press release. “Through this rule, we are building a more functional and sensible asylum system to ensure that those who are eligible receive protection more quickly, while those who are not eligible will be quickly removed.”

Asylum seekers will now receive their applications from an asylum officer at the U.S. Citizenship and Immigration Services within several months, if the plan works as intended, instead of waiting years for a final decision from a judge. immigration.

The internal security and justice departments released a draft proposal in August. After reading 5,000 public comments on the draft, officials in a call with reporters on Wednesday said they had made some changes but kept the overall picture of the proposal. Officials – from the U.S. Citizenship and Immigration Services and the Executive Bureau of Immigration Review, which oversees immigration courts – spoke to reporters on the condition that they were not named.

Under the rule, anyone who is deprived of protection by an asylum officer could request a review of the citizenship and immigration services within seven days. If rejected, the person could ask an immigration judge to review her application and subsequently take her case to the Board of Immigration Appeals and federal circuit courts. After all offers are exhausted, or if none are prosecuted, the person would be subject to expulsion. The rule does not apply to unaccompanied minors arriving without a parent.

Proponents say the policy improves what has long been considered a frightening process for traumatized migrants. Instead of having to initially recount their worst experiences in a contradictory court while defending themselves from deportation, migrants will now be able to present their case in an asylum office.

But many advocates fear the changes undermine constitutional due process rights for asylum seekers by essentially expanding the so-called expedited removal process, a mechanism used to quickly push back immigrants stopped at the border.

Richard Caldarone, who manages the litigation at the Tahirih Justice Center, a national non-profit organization serving immigrants fleeing gender-based violence, said the retrial does not have a significant humanitarian purpose because it does not give trauma survivors enough. time to find a lawyer, collect evidence and recover.

“Trauma survivors will not be able to tell a government official what happened to them 72 hours after they arrived in a safe place,” he said. “Given the emphasis DHS has placed on speed for asylum seekers, this will be like the previous process, designed in a way that will systematically fail to collect people’s best asylum applications.”

People wearing masks and carrying objects walk near a fence

Asylum-seeking families head to the United States from Matamoros, Mexico.

(Carolyn Cole / Los Angeles Times)

A better system, Caldarone said, would give people a year before the asylum hearing to prepare and then quickly provide a decision on whether they can stay or be deported. That would allow people to heal from trauma and lead to fewer appeals, he said.

The backlog of cases pending in immigration courts has exploded in recent months, reaching nearly 1.6 million by December, according to the Transactional records access clearinghouse, a nonpartisan data research center at Syracuse University. It has tripled since 2016.

Under the new system, asylum officials will grant decisions within approximately 90 days. Appeals from the immigration court generally take another 90 days, officials said.

During his first year in office, Biden took about 300 immigration enforcement actions, nearly a third of which to reverse Trump-era policies, according to an analysis by the Institute for Migration Policiesa Washington-based think tank.

An area that hasn’t changed: Over the past two years, the border has been closed to the vast majority of asylum seekers as part of a pandemic-era restrictive policy initiated by former President Trump. The policy, known as Title 42, calls for a 1944 public health statute to quickly deport migrants attempting to enter the United States in order to curb the spread of the coronavirus.

Of the more than 1.7 million people detained by US Customs and Border Protection at the southwestern border during fiscal year 2021, 61% were deported under Title 42, according to the agency’s data.

Experts say those swift removals under Title 42 resulted in an increase in unauthorized crossings into the United States by people who would otherwise have sought asylum in an official port of entry. The rapid repatriations to Mexico have also led to repeated attempts by migrants to cross the border, increasing the number of customs and border protection arrests.

Earlier this month, the US Centers for Disease Control and Prevention has formally ended this policy for children traveling without a parent, stating that their expulsion “is not justified to protect public health”. Advocates for immigrants and Democratic Congress leaders have said the policy is illegal and in recent weeks they have stepped up calls to end its application to adults traveling alone and parents traveling with their children as well.

Traffic at the San Ysidro border crossing

Traffic at the San Ysidro border crossing in Tijuana.

(Alejandro Tamayo / San Diego Union-Tribune)

But asylum seekers won’t see substantial changes, even once the updates are in place, until the CDC decides to end Title 42 altogether. In recent weeks, as the response to the pandemic has changed in the United States, Federal officials have begun planning for the policy’s possible demise.

The asylum review will be implemented in stages, although officials said they still need to decide where to implement the initial program and whether to target a specific population, such as single adults or families.

In a phone call with reporters last week, Mayorkas said the phased implementation of the new asylum system is designed to avoid putting a strain on citizenship and immigration services. The agency faltered on bankruptcy, he added, and was “virtually dismantled” under the Trump administration, whose approach to immigration discouraged many immigrants from applying before the pandemic further reduced the agency’s workload. .

“We need to be aware of the asylum division’s resource constraints in US citizenship and immigration services as we rebuild that agency,” he said, noting that the agency is almost entirely funded by application fees.

Under the proposed rule, the agency estimated it would have to hire 800 new employees and spend $ 180 million to handle 75,000 cases a year.

Before the pandemic, migrants encountered near the border were checked by asylum officials for fear of persecution. Those who passed the initial screening would have their cases transferred to immigration courts, where a judge would decide whether they qualified for asylum or another form of protection and could remain in the United States.

Meanwhile, they have been detained or released pending a final court hearing. Immigrants facing deportation do not have the same right to a publicly funded lawyer as people in criminal proceedings, and most represent themselves.

To qualify for asylum, immigrants must demonstrate fear of being persecuted in their country of origin on the basis of one of five protected categories: political opinion, race, religion, nationality or membership of a particular social group.

Officials hope the new asylum policy will reduce unauthorized migration.

“The possibility of staying in the United States for years pending an initial decision may justify unauthorized border crossing by individuals who otherwise would not have tried to enter the United States and who do not have a request for meritorious protection,” states the norm.

The goal is also to reduce stress for those who ultimately receive asylum or other immigration protections, under the rule, as currently “they are left in limbo that they may still be removed, are unable to work legally until their asylum application has been granted or has been pending for several months and they are unable to petition qualified family members, some of whom may still be at risk of harm.