The Departments of Justice and Homeland Security Publish Final Rule on Procedures for Asylum and Withholding of Removal
A joint finalized rule by the Department of Justice and Department of Homeland Security will go into effect mid-January 2021 which will “streamline and enhance procedures for the adjudication of claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations.” The two Departments claim this new rule will be able to “more effectively separate baseless claims from meritorious ones” and avoid unnecessary delays in processing the cases that have proven their merit.
One of the largest changes made to the policy is how the Departments have reportedly increased the efficiency in processing asylum claims. Individuals who “have credible fear will be adjudicated by an immigration judge in a streamlined proceeding, rather than an immigration court proceeding conducted under section 240 of the INA.” Additionally, immigration judges will have the ability to abandon asylum applications without a hearing if the applicant “does not demonstrate prima facie eligibility for relief.”
To be eligible for asylum relief, an alien must be physically present in the United States or present themselves at a port of entry. Within one year of the last date of arrival to the U.S., an individual seeking asylum must apply with the United States Citizenship and Immigration Services (USCIS). This process is known as affirmative asylum processing.
Applicants are authorized to be in the United States while waiting for a decision on their case but usually are not authorized to work. During the adjudication process, the individual will appear before a USICS Asylum Officer for a non-adversarial interview where the officer will determine if an individual is eligible for asylum benefits. If they are approved, they are granted legal permanent residence.
If a case is denied, the process then becomes a defensive asylum process. If an individual applying for asylum does not have legal immigration status, they will be issued a Form I-862 Notice to Appear before an immigration judge of the Executive Office for Immigration Review (EOIR). The judge then conducts a ‘de novo’ hearing of the case and makes a decision independent of the one made by USCIS.
An individual may also begin the defensive asylum processing if requesting asylum as a defense if that individual is already in removal proceedings in immigration court with the EOIR. Additionally, if an individual is apprehended in the U.S. or at a U.S. port of entry without proper legal immigration status, they may request a defensive asylum processing. In contrast to the affirmative asylum processing, these cases are in front of an immigration judge in an adversarial setting.
According to 8 U.S. Code 129a, Removal Proceedings, “in general, an immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.” This new rule will limit the cases that appear in front of an immigration judge for a hearing.
When an alien is granted a hearing, they are also granted “a reasonable opportunity to examine the evidence” presented against their case, present new evidence, and cross-examine witnesses brought against them during the hearing. Furthermore, “the determination of the immigration judge shall be based only on the evidence produced at the hearing.” This new rule seems to deny the opportunity of a hearing for more individuals than in the past.
The new rule highlights that “asylum is a discretionary form of relief” and the amendments made therein stipulate the discretion used by adjudicators by explicitly stating numerous factors of a case which an immigration judge must consider, usually unfavorably to the applicant. If an alien has any of the factors listed within the new law, the adjudicators are instructed to consider such factors to be “significantly adverse for purposes of the discretionary determination” and that only in extremely rare cases would those circumstances be overlooked.
Some of the factors to now be considered include: if an alien has unlawfully entered or attempted to enter the United States, the failure of an applicant to seek asylum or refugee protection in another country in which the alien traveled through before arriving at the US border, and the amount of unlawful time spent in the United States at the time of application.
In an attempt to dissuade applicants from making frivolous requests for asylum, and as one of the strategies employed to increase efficiency in this new policy, if an alien is found to have knowingly made false claims on their applications, they become “permanently ineligible for any benefits under the Act.” Adjudicators are no longer “required to provide opportunities for applicants to address discrepancies or implausible aspects” of their claims.
The new rule adds definitions to certain claims aliens may use in their applications, such as “particular social group,” “political opinion,” and “persecution.” These definitions also put firm limits on circumstances within these definitions that “would not generally result in favorable adjudication” if uncovered in the adjudication process. The new policy also raises the burden of proof for credible fear claims from “significant possibility” to a “reasonable possibility” standard.
The rule made several non-substantive changes after publishing the proposed rule to the Federal Register for public comments in June 2020. The proposed rule received 87,000 comments both supporting and opposing the changes to be made.
Those who disagreed with the changes cited a fear that this change would effectively be ending the asylum program in the United States. However, the Department of Justice and Department of Homeland Security responded to these comments saying that asylum in the United States is enacted and protected by statute, which cannot be altered by this rule.
The finalized rule also had positive comments on the proposed rule. Those who favored the new policy commended the new policy for its efforts to make the process more efficient, given the backlog and current delays in adjudicating the claims. Some of these supportive comments also stated they saw this as a positive step toward limiting immigration, in more general terms.
In the fiscal year 2020, 14,507 individuals were granted asylum, making up 19.2% of all filed claims for asylum. The number of cases granted in 2020 declined by 22% from the 18,836 cases granted in the fiscal year 2019. In the same year, 41,386 were denied asylum benefits, making up 54.55% of all cases filed and adjudicated within the fiscal year 2020. The country with the most granted asylum cases was China with 1,899 cases granted.
