On Tuesday, March 29, 2022, the Biden Administration issued a rule revising the asylum system to speed up the process and relieve pressure on the nation’s overburdened immigration courts.

The new ruling 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 of Immigration Review (EOIR), which oversees the U.S. immigration court system. The rule applies to asylum seekers who are in expedited removal proceedings known as “expedited removal,” which is scheduled to go into effect on May 31, 2022.

In this article, we explain in detail these new rules governing the processing of asylum claims (Form I-589).

What Does the Rule Say?

Under the new rules, some asylum seekers who say they fear persecution if they return to their home country will have their claims decided by USCIS asylum officers instead of USCIS judges. The government’s intent is to avoid adding more cases to the nation’s immigration court backlog, which currently stands at more than 1.7 million.

Pending asylum claims alone account for nearly 40 percent of the immigration court backlog, and more than 70 percent of those are defensive claims (i.e., in response to DHS deportation proceedings for asylum seekers).

From Immigrant Advocate’s Concerns to the Administration’s Statement

While the asylum reform rules appear to have some benefits, such as speeding up the system for asylum seekers in very strong cases, immigrant rights advocates and attorneys have also expressed concern that the plan will rush the judicial process for people with complex asylum claims without time to hire an attorney or prepare their cases.

Homeland Security Secretary Alejandro N. Mayorkas said in a statement that the rule would lead to a more efficient asylum system, promising that USCIS and EOIR “will process applications for asylum or other humanitarian protection quickly and efficiently while ensuring due process.”

However, to implement the program on a large scale, the government would need to hire at least 800,000 new asylum officers, with a caseload hovering around 75,000 new asylum claims per year. Given the continued need to hire asylum officers and the historical difficulty of staffing immigration agencies and courts, some advocates are concerned that the program lacks the resources to effectively manage the asylum system for vulnerable immigrants.

Moreover, given USCIS’s active asylum backlog of nearly 432,000, adding tens of thousands of new cases to the IFC process will undoubtedly increase the backlog within the USCIS Asylum Division, while potentially lengthening wait times for other immigrant groups, such as USCIS to reallocate internal resources.

As noted above, despite these concerns, the rule makes welcome changes.

The Welcome Changes Brought about by the New Rule

1.)  The rule largely returns the CFI process to its previous status introduced by the Trump administration, including the restrictive changes that began in 2017 and continued through the end of his presidency.

2.)   The new rule also closes a loophole where the previous administration used US Border Patrol agents instead of USCIS-trained asylum officers for CFI.

3.)  The new rule closes this loophole by helping to ensure that immigrant asylum claims are processed by trained and knowledgeable USCIS officials familiar with US asylum law.

In addition, if a person receives a “positive” IFC, meaning that the asylum officer has determined that the person has a well-founded fear of persecution, rather than being placed directly into immigration court removal proceedings, the person must apply for defensive asylum within one year. Upon filing Form I-589, the new rules send asylum seekers to an asylum merit interview (AMI), also conducted by a USCIS asylum officer.

The AMI is a non-adversarial process, meaning that it is an interview to determine an applicant’s eligibility for asylum, and its structure does not require applicants to defend themselves or be cross-examined by DHS “prosecutors” or attorneys. More importantly, applicants will likely have an attorney present at the IMA.

4.)  Immigrants with a well-founded fear of persecution may be granted asylum at the AMI stage under new rules, which will allow asylum seekers to prevail without having to simultaneously file an affirmative I-589 asylum application or wait years for a hearing in one of the immigration courts.

What is the Current Asylum Grant Rate in Immigration Court?

It is important to remember that USCIS asylum officers currently grant asylum only about 22% of the time. While immigration court asylum rates have increased from 29% for President Trump to 37% for President Biden, USCIS has only approved 18% of Form I-589 asylum applications in FY 2021, while so far it is just over 22% in FY 2022. Because of these low grant rates by USCIS asylum officers, most individuals subject to this new expedited asylum process are unlikely to succeed in an onsite interview.

Applicants who are not granted asylum under AMI status will still be referred to immigration court, where they will have the opportunity to reopen their case and seek other forms of humanitarian assistance, such as a stay of deportation or protection from torture under UN conventions.

The new asylum rules significantly accelerate this time frame and are designed to allow asylum seekers to attend an asylum interview 21-45 days after a credible fear interview, and to appear in immigration court 30-35 days after an IMA has been denied asylum. Hold a preliminary hearing.

The new rules also add status conferences – a new concept in immigration proceedings – which will be held 30 days after the initial hearing (called the main hearing, or MCH) and the “trial.” The “trial” will take place in 30 days. Essentially, the new rules are designed to take a process that, given the current backlog, takes 2 to 6 years, and reduce it to 2 to 4 months.

Whether this will work remains to be seen; in the meantime, immigration advocates are preparing to submit additional comments on the rule to the Departments of Homeland Security and Justice before it is finalized on May 31, 2022, and attorneys are gearing up to help safe havens. Applicants are navigating another technological shift to an already complex situation.

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