DHS implements rule to streamline asylum applications

The Biden administration on Thursday is expected to publish a final rule designed to streamline the asylum process, an effort to remove those fleeing persecution from an immigration court system backlog that can leave them in limbo for years.

Under the new rule, the Department of Homeland Security (DHS) expects asylum processes will take several months on average, compared to several years under the current system.

“The current system for handling asylum claims at our borders has long needed repair,” said Homeland Security Secretary Alejandro Mayorkas in a statement.

“Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed. We will process claims for asylum or other humanitarian protection in a timely and efficient manner while ensuring due process.”

The rule gives authority to U.S. Citizenship and Immigration Services (USCIS) officials to first weigh the merits of those who say they cannot return home for fear of torture and persecution, a task that currently falls to some 500 immigration judges housed within the Department of Justice.

Though largely a bureaucratic shift, the shuffle could help asylum-seekers more quickly gain status instead of funneling them into the 1.7 million immigration court case backlog that would take more than four years to get through even without any new cases.

Under the new system, USCIS officers could grant asylum, and any migrants who are denied could appeal the decision within the  immigration court system, an office within the Department of Justice known as  the Executive Office for Immigration Review.

Immigration court judges would be expected to rule on the matter within 90 days, an expedited timeline officials say is possible as they will be able to review the case files and evidence already presented to officers at USCIS, an agency within the Department of Homeland Security.

“The streamlining measures that we’re implementing are possible because the cases will come to the immigration court with the record already having been created by the asylum officers so the judges will receive that record. The judge and evaluating the case will not be starting from scratch,” a senior official told reporters Wednesday.

But advocates worry that streamlining could shortcut due process for migrants who may struggle to secure legal representation in a rushed process that begins 21 days to 45 days after their initial screening interview.

“The new interim rule risks sacrificing accurate decision-making for its narrative of speed,” said Eleanor Acer, senior director for refugee protection at Human Rights First.

“Rushing asylum-seekers through rocket docket adjudications without sufficient time to secure legal representation, gather evidence or prepare their case submissions is inefficient and counterproductive. Imposing unrealistic deadlines will lead to mistaken decisions, additional adjudication to correct those mistakes, and the improper return to persecution of people who qualify for asylum. The U.S. needs a fair and timely process that ensures accurate decisions that protect the lives of refugees.”

And whether the process will even be expedited remains to be seen. USCIS has its own struggles with backlogs.

USCIS has historically been primarily funded by applicants’ fees, a system that’s created logistical shortcomings that were aggravated by the coronavirus pandemic and the Trump administration’s redirection of the agency’s resources.

As of February, USCIS was facing a backlog of 9.5 million unattended applications, according to the Migration Policy Institute.

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Rebecca Beitsch & Rafael Bernal