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.

While the Biden administration has injected funds into USCIS, adding more than $200 million to the agency’s budget for 2022, the agency is still facing challenges including in staffing.

“Congress has provided for some additional funding for USCIS to provide additional staffing to the agency for this and other needs,” a USCIS official told reporters on a call Wednesday.

“And we are looking at those sources as well as others in terms of trying to determine how best to fund and bring on board the additional staff needed to fully staff the need for carrying out this process,” added the official.

Still, administration officials were largely unable to answer questions about whether they could adhere to an earlier estimate that USCIS would need to hire 800 new officers to help deal with the expanded workload.

After an interview with USCIS officials, those initially denied asylum by the agency will be routed to the immigration court system, where they will face another expedited process, with a hearing to be scheduled within 90 days.

“These timelines are punishing, brutal, and will almost certainly prevent the vast majority of asylum seekers going through this system from being able to obtain lawyers,” Aaron Reichlin-Melnick, policy counsel with the American Immigration Council, wrote on Twitter.

Officials said the rule would be implemented in a phased approach, which will give them time to assess the workforce needs of USCIS. The administration likewise did not outline who would be among those initially subjected to the rule.

But the move to streamline asylum cases, even if it means further straining USCIS, is part of the Biden administration’s effort to be seen as rebuilding an immigration system decimated by the previous administration’s restrictionist policies.

Homeland Security Secretary Alejandro Mayorkas last week hinted that the implementation of the asylum rule could help the agency drawn down Title 42, one of the most unpopular Trump-era policy holdovers. 

Title 42 allows for the rapid expulsion of migrants under the guise of sanitary protections during the pandemic. The Trump era holdover policy is still in effect under the Biden administration.