Refugees International Comment on DHS and DOJ Notice
Below is the slightly adapted comment submitted to the Federal Register earlier this week by Refugees International Senior U.S. Advocate Yael Schacher. The comment is a response to a notice of proposed rulemaking by the Departments of Homeland Security and Justice regarding the screening and adjudication of border asylum claims. The proposed regulation adopts some elements recommended in a May 2021 Refugees International report on the subject. But, for the reasons described below, the regulation does not go far enough to create an efficient and uniform asylum system that treats all asylum seekers fairly and with dignity and assures that none are returned to danger. Refugees International calls on the Biden administration to implement novel reforms, rather than revamp past failed approaches.
Andria Strano
Acting Chief, Division of Humanitarian Affairs,
Office of Policy and Strategy,
U.S. Citizenship and Immigration Services,
Department of Homeland Security
Lauren Alder Reid, Assistant Director
Office of Policy
Executive Office for Immigration Review
Comment on Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, published at 86 Fed. Reg. 46906 (Aug. 20, 2021).
I write this comment as an historian of the U.S. asylum system and Senior U.S. Advocate at Refugees International, an independent organization that advocates for lifesaving assistance, human rights, and protection for forcibly displaced people. Both in my current and past positions, I have worked with and observed asylum seekers going through the expedited removal/credible fear/immigration court process.
The stated goal of the proposed regulation is to make adjudication of asylum claims at the southwest border more expeditious so as to more quickly provide security to those who merit protection and to discourage abuse of the asylum system by those who do not. While the regulation includes some good proposals, several of its assumptions are faulty and several of its key changes will not lead to more justice or efficiency. Overall, the proposed regulation does not convincingly show its changes will improve the asylum system more than other possible reforms, some of which I suggest, that do not make use of expedited removal.
While the new rule would, in one way, make the procedure of handing border asylum claims similar to the handling of affirmative ones (through non-adversarial asylum officer adjudication), it also distinguishes them (through disparate forms of immigration judge review). A truly fair and efficient system would not “improve” expedited removal so that more border arrivals could be placed into it, but instead create a uniform and well-resourced asylum procedure for all asylum applicants. As I wrote in a May 2021 Refugees International report on expedited removal, concerns with the treatment of asylum seekers under the 1990s process were raised by members of Congress of both parties almost immediately after they went into effect and have been echoed by the U.S. Commission on International Religious Freedom and human rights groups ever since.[1] The proposed regulation does not address many of these criticisms.
It especially does not address the most consistent criticism of expedited removal: the fact that many seeking protection never get referred by Customs and Border Protection (CBP) officials for interviews with asylum officers. Given that, over the past few years, CBP has engaged in illegal turn-backs and expulsions under Title 42, the neglect to refer asylum seekers to credible fear interviews will likely only get worse with reimposition of expedited removal on a wide scale.[2] Another longstanding issue that the NPRM does not address is the inability of counsel to participate in immigration judge reviews of negative credible fear determinations.[3] By leaving CBP in charge of access to asylum and by not providing adequate due process to those who fail credible fear screenings, the proposed rule does not ensure access to protection to all asylum seekers arriving at the border and risks returning asylum seekers to danger.
The proposed regulation assumes that asylum seekers who seek protection at the border are more prone to exploit delay or to be fraudulent than other asylum seekers so that a special system is needed just for them. Given the acknowledged changed demographics at the border since the creation of the 1990s expedited removal/credible fear process and the backlog that currently exists in the affirmative asylum system for non-border asylum seekers, this assumption seems misplaced.[4] The notice [NPRM] proposes that asylum officers adjudicate applications of those who seek asylum at the border but assumes decisions by asylum officers in these cases do not need to be reviewed in the same full way by immigration judges as asylum officer decisions in affirmative cases. It is not clear why this is a fair assumption and it seems misplaced since, according to EOIR’s Statistical Yearbook, 83 percent of cases that asylum officers did not grant after interview were subsequently granted asylum by the immigration courts in 2016.[5]
From an efficiency perspective, the proposed regulation, as the NPRM concedes, would only lead to a “15 percent reduction” in EOIR cases (86 FR 46925).[6] According to TRAC data from the University of Syracuse, affirmative asylum cases currently make up a significant percentage (about 41 percent) of the huge EOIR asylum case load and would be unaffected by the proposed regulation. Since 2018, growth of the EOIR backlog is partly attributable to limits on administrative closure, the government shutdown of early 2019 and COVID-19 related closures, and the MPP program.[7] Clearly, other reforms would have a significant impact on the EOIR backlog without limiting access of border asylum seekers to a full evidentiary hearing before immigration judges. Further, the proposed rule essentially creates a system whereby border asylum seekers would have their claims reviewed by asylum officers twice and then get two chances for partial reviews by the Immigration Court (further discussed below). From an equity and justice perspective, why is an asylum seeker who arrives at the border and applies for asylum but is also eligible for another form of relief not able to apply for that relief while an asylum seeker who applies away from the border could do so? (86 FR 46943) Why are affirmative asylum applications automatically referred to immigration court if the applicant’s case is denied by the asylum officer while, under the proposed rule, a border asylum seeker denied by an asylum officer needs to file a notice affirmatively requesting immigration judge review? From both an efficiency and equity perspective, why does the NPRM task immigration judges with reviewing grants of withholding of removal by asylum officers? (86 FR 46920-1 )[8]
The distinct treatment of border asylum seekers in the new regulation cannot be justified by the mere existence of the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996. The statute creates expedited removal but gives DHS authority to determine its application; this is why DHS currently (in fall 2021) has the authority to place only a small proportion of border arrivals in expedited removal. This discretionary authority is recognized at several points in the NPRM. (86 FR 46911, 46926)
Further, the NPRM requires a strained reading of legislative history to justify its proposed changes to the expedited removal/credible fear process. 8 U.S.C. §1225 (b) (1) (B) (iii) (IV) states that asylum seekers who have expressed fear and are referred to credible fear interviews “shall be detained pending a final determination of credible fear.” This detention requirement is one of the many aspects of the expedited removal/credible fear process that the notice claims makes it “no longer fit for its intended purpose” given the number of people claiming asylum at the border. In fact, the detention mandate is an aspect of the process that has been criticized since the late 1990s, before limits on bed space and family detention were at issue. As Senator Kennedy told Congress in 1998, detention of asylum seekers (and he was specifically referring to adults) is traumatizing, prevents access to counsel, and is not in accord with guidelines of the United Nations High Commissioner for Refugees.[9] Rather than acknowledging this, the proposed regulation attempts to “improve” expedited removal by interpreting the detention mandate as not applicable when “detention is unavailable or impracticable.” This parole does not necessarily apply to asylum seekers that members of Congress from both parties early on recognized should not only not be detained but also be exempt from expedited removal altogether: those coming from countries with poor human rights records or where “conflict or other extraordinary conditions would pose a serious threat to the alien’s safety.”[10]
A major presumed “improvement” to the expedited removal process proposed in the rule is that asylum seekers in expedited removal who pass credible fear interviews are not put into full 240 removal proceedings. This is despite, as acknowledged in footnote 48 of the NPRM, a 1996 House Report said that those who pass credible fear interviews were to be put into these proceedings; several members of Congress from both parties said the same during debates that year on the legislation.[11] To justify the “improvement,” the footnote points to a Feb. 3, 1997 letter by Congressman Lamar Smith stating that Congress deliberately did not specify—in the language of 8 U.S.C. 1225(b)(1)(B)(ii)—the proceedings after passage of credible fear to allow for “flexibility regarding how the asylum adjudication would take place.” But the very same letter by Smith also stated—contra the proposed rule — that “the intent of the sponsors of expedited removal was that asylum [credible fear] screening would take place at the port of entry…[or] at an INS or other detention facility.”[12]
The reports by USCIRF, the Administrative Conference of the United States, and Migration Policy Institute cited in the NPRM as support for the idea of asylum officers adjudicating defensive claims do not suggest—as the NPRM concedes– eliminating full evidentiary immigration judge hearings of defensive asylum claims. Under the proposed procedure, immigration judges would review the transcript of the asylum interview and the asylum seeker would have to petition the judge to consider additional evidence (which could lead to denials, appeals, and delays) or to testify. This curtailment of due process goes way beyond the procedure recommended by USCIRF in 2005 whereby asylum officers should either grant asylum cases immediately after the credible fear interview or, in more complicated cases, refer the asylum seeker to full proceedings before an immigration judge. Efficiency is gained by the quick approval of strong claims by asylum officers. Non-adversarial full asylum hearings with asylum officers are not faster and fairer than immigration court hearings with represented asylum seekers, especially if attorneys on both sides conference to narrow issues in dispute. It is not clear why it would not be an equally prudent idea to have particular immigration judges hear asylum cases and create a special appellate asylum board in EOIR, as suggested by David Martin in a 1988 report on asylum reform for the Administrative Conference of the United States.
In this same report, Martin notes that long delays in adjudication were created because of the length of time it took to prepare transcripts of hearings—which the NPRM requires in its proposed procedure for immigration judge reviews.[13] (Further, the transcript, and any documents submitted by the asylum officer, must be translated into the asylum seekers’ languages and provided to them so that they can show that additional evidence they want to provide the judge is “non-duplicative,” as required by the NPRM. A special arrangement would have to be made in cases involving non-literate asylum seekers). Allowing asylum seekers to testify in immigration court is more efficient, not to say crucial for credibility assessments that are key to asylum determinations. Given the legal complexity of the current asylum standard, the lack of any opportunity for counsel to examine the asylum seeker throughout the entire proposed procedure will make winning asylum under it very difficult.[14]
The NPRM states that, under the new regulation, those paroled before their credible fear interviews would have “their fear claims heard and considered outside detention” without explaining where, exactly, this would take place.[15] Any attempt to do this very quicky and at the border would make it unlikely that most asylum seekers would be able to consult with counsel (as they would if allowed to proceed to communities around the country, as is customary when DHS places them in section 240 proceedings). In 1988, when the Immigration and Naturalization Service briefly required that arriving asylum seekers remain in South Texas for asylum interviews, it almost immediately overwhelmed the local community. It is unclear from the NPRM if USCIS intends to open new asylum offices near the border or at other locations. Given that the rule proposes that the credible fear interview be the basis of the asylum application, these interviews must be in person (as should interpretation).[16] Further, the timeline between the credible fear interview and asylum officer hearing is also unclear[17] and, if it is too expedited, could leave people unable to identify errors in the CFI record or collect evidence to support their claims. In short, whether or not these elements of the new procedure would actually be fair in their implementation is very unclear because of missing details.
Endnotes
[1] Yael Schacher, Addressing the Legacy of Expedited Removal: Border Procedures and Alternatives for Reform,
https://www.refugeesinternational.org/reports/2021/5/11/addressing-the-legacy-of-expedited-removal-border-procedures-and-alternatives-for-reform
[2] For the illegality of “metering,” see ruling in Al Otro Lado v. Mayorkas: https://ccrjustice.org/sites/default/files/attach/2021/09/742%20Order%20granting%20in%20part%20Plaintiffs%20Motion%20for%20Summary%20Judgment%202021.08.02.pdf
For the illegality of expulsions under Title 42, see ruling in Huisha Huisha v. Mayorkas: https://www.aclu.org/legal-document/order-huisha-huisha-v-mayorkas
[3] This is especially concerning since the NPRM eliminates requests for reconsideration to the asylum office (after immigration judge review of credible fear determinations) and also makes the records of the credible fear determinations so crucial to the asylum application.
[4] I assert that the assumption has never been fair because it assumes the merits of asylum claims correlate to geography and mode of entry. As the federal court ruled in American Baptist Churches v. Thornburgh 760 F. Supp. 796 (N.D. Cal. 1991), border enforcement considerations should not influence asylum adjudication.
[5] Figure 17, K3, U.S. Dep’t of Justice, “FY 2016 Statistics Yearbook,” (March 2017), https://www.justice.gov/eoir/page/file/fysb16/download
[6] Though this comment focuses predominantly on concerns of equity and justice rather than cost-benefit analysis, reducing the 1.3 million immigration court backlog by approximately 30,000 cases does not seem to merit an outlay of almost two hundred million dollars to the asylum office (which currently especially lacks the interpretation services that the courts have). It also does not seem fair to foist the cost of this outlay on immigrants (through a steep USCIS fee hike) and thereby hinder their ability to adjust status and naturalize. A nation that values asylum should share the responsibility of funding adjudication to the same extent as it funds enforcement.
[7] For a discussion of causes of the EOIR backlog, see https://trac.syr.edu/immigration/reports/579/ and https://www.migrationpolicy.org/article/backlogged-us-immigration-courts-breaking-point
[8] This suggested handling of claims of withholding of removal is the opposite of the procedure suggested in a 2012 Administrative Conference of the United States report that the NPRM cites favorably elsewhere (page 16 of https://www.acus.gov/sites/default/files/documents/2012-3.pdf ; 86 FR 46918.)
[9] “INS Reform” Hearing before the Subcommittee on Immigration of the Senate Committee on the Judiciary, 105th Congress, 2nd Session, September 16, 1998, 102
[10] S. 1940 –Refugee Protection Act of 1999, https://www.congress.gov/bill/106th-congress/senate-bill/1940/actions
[11] See the statements of Alan Simpson, Patrick Leahy, and Lamar Smith cited by Jeffrey Chase, “The Need for Full Fledged Asylum Hearings,” https://www.jeffreyschase.com/blog/2021/10/6/the-need-for-full-fledged-asylum-hearings
[12] Letter for Richard A. Sloan, Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, from Lamar Smith, Chairman, Subcommittee on Immigration and Claims, Re: INS 1788-96, RIN 1115-AE47 (Feb. 3, 1997) (copy on file with author).
It is also important to note that, by not placing asylum seekers into 240 proceedings, the NPRM eliminates the ability of those who entered without inspection and pass their credible fear screenings to be eligible for a bond hearing under Matter of X-K- (23 I&N Dec. 731 (BIA 2005)) and Padilla v ICE (https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/27/19-35565.pdf, enjoining Matter of M-S-).
[13] Report to the Administrative Conference of the United States. Reforming Asylum Adjudication by David A. Martin, May 1989. https://www.acus.gov/sites/default/files/documents/1989-04%20Asylum%20Adjudication%20Procedures_0.pdf
[14] Jeffrey Chase, “The Need for Full Fledged Asylum Hearings,” https://www.jeffreyschase.com/blog/2021/10/6/the-need-for-full-fledged-asylum-hearings
[15] The NPRM only notes that initial implementation of the proposed rule would be limited “to families apprehended in certain southwest border sectors or stations, as well as based on the family unit’s final intended destination (e.g., if the family unit is within a predetermined distance from the potential interview location).” 86 FR 46922.
[16] The regulation as it now stands does not allow relatives who travel to the United States separately and are not placed in expedited removal to be joined to this application.
[17] The NPRM only notes that, under the proposed rule it “is expected to take 90 days in most cases for the initial [asylum] determination, assuming no further review is sought [by an IJ].” 86 FR 46938
PHOTO CAPTION: An asylum seeker from Nicaragua waits with his wife and his eight-year-old son at the Paso del Norte International Bridge in Ciudad Juarez in the state of Chihuahua, Mexico on April 6, 2020. (Photo by PAUL RATJE/Agence France-Presse/AFP via Getty Images)