DHS: New asylum rule ‘intended to be a national security and public safety measure’

The Biden administration officially unveiled its latest executive action on border security and immigration on Thursday, emphasizing the asylum rule’s focus on “national security and public safety.”

The proposed rule, which was widely reported a day ahead of its unveiling, would allow asylum officers to determine if an asylum-seeker presents a threat at an earlier stage in the process.

The first step in requesting asylum is a credible fear interview, where a migrant must declare a fear of persecution if they are repatriated — that’s when the new rule will allow officers to cross-check national security and criminal justice data to determine if an individual presents a threat.

Those revisions are currently conducted at a later stage in the process, a formal asylum interview that delves deeper into each migrant’s eligibility for protections.

“The proposed rule we have published today is yet another step in our ongoing efforts to ensure the safety of the American public by more quickly identifying and removing those individuals who present a security risk and have no legal basis to remain here,” Secretary of Homeland Security Alejandro Mayorkas said in a statement.

“We will continue to take action, but fundamentally it is only Congress that can fix what everyone agrees is a broken immigration system.”

The new rule will be formally introduced Monday, and will then go through a comments process.

Officials said the rule will apply to a limited number of migrants but did not specify a number or an estimate of how many people would be affected.

“I just want to note that while the population may be limited, they are the individuals that we are most concerned about from a public safety and national security lens,” a Department of Homeland Security (DHS) senior official told reporters on a call Thursday.

“I will say this is really intended to be a national security and public safety measure. And so it is intended to ensure that, again, the individuals that we are most concerned about that we encounter — people with serious criminal histories or links to terrorism — can be removed as early as possible in the process.”

The official said asylum officers conducting credible fear screenings would not see a significantly increased workload because of the rule.

“What this rule will do is allow them, when we have clear information that obviously disqualifies someone from asylum or withholding of removal because they are a threat to national security or public safety, to consider that information as early in the process as possible,” they said.

In parallel to the new rule, DHS will update its policy on the use of classified information in immigration proceedings, presumably to better screen for national security threats.

The rule comes amid heightened rhetoric from Republicans on alleged threats presented by foreign nationals both in the national security and public safety space.

No one in the United States has ever been killed in a terrorist act committed by someone who illegally crossed the U.S.-Mexico border, and multiple studies have found lower crime rates among immigrants than among native-born U.S. citizens.

Officials did not address whether prospective asylum-seekers tagged as potential threats by immigration officers would have any legal recourse to contest that determination.

“The rule is particularly dangerous for people who are fleeing persecution that can itself involve arrest or baseless allegations by their government. The asylum officer under this rule can quickly deport them without any opportunity to explain that the arrest was in fact part of the persecution they fled,” said Heidi Altman, the director of policy at the National Immigrant Justice Center.

People in immigration proceedings are not entitled to legal counsel, but they may obtain representation. According to the Transactional Records Access Clearinghouse, a government data tracker housed at Syracuse University, only about 30 percent of immigrants in proceedings had legal representation as of December.

DHS officials did not immediately respond to a question on whether due process safeguards were included in the rule.

—Updated at 5:04 p.m.