This summer, the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice’s Executive Office of Immigration Review (EOIR) published a joint proposed rule regarding asylum processing; the agencies state their intended goal in issuing the rule is bringing efficiency and fairness to asylum processing at the border. 

NIJC filed comments in response to this rule, outlining significant concerns that the rule will reinforce, rather than overcome, two fundamental flaws: the continued jailing and rushed deportations of people seeking asylum or related protection provided by law. Other changes the rule proposed would have mixed or positive outcomes.

Jailing of asylum seekers
It is no secret that the U.S. is addicted to incarceration. In immigration, this addiction translates into a presumption that everyone who crosses into the United States must be detained, even though there is no evidence that detention keeps U.S. communities safer. For asylum seekers, detention all but guarantees they will navigate infamously complex immigration laws alone, while separated from their loved ones. That’s why the United Nations leading refugee agency cautions against the jailing of asylum seekers.

With this rule, USCIS and EOIR propose discrete regulatory changes to enable the government to parole or release some asylum seekers, but largely miss the forest for the trees. Specifically, the rule provides overly narrow definitions and standards that will result in the continued, systemic, and pervasive detention of asylum seekers, resulting in lifelong psychological and physical harms for those jailed. NIJC proposed concrete changes to ensure that the U.S. finally protect the liberty of asylum seekers.

Rushed deportations of people seeking protection
The proposed rule is built on the foundation of “expedited removal,” a process that Congress created in 1996 by layering a racist and broken “war on migration” policy on top of ongoing already racist and broken “war on drugs” policies. Specifically, the 1996 law permitted the rapid deportation of asylum seekers who fail to pass “credible fear” interviews and bars them from reentering for five years. The policy has unjustly turned away countless asylum seekers who are frequently unrepresented and too traumatized and lacking fluency in English and U.S. immigration laws to present their claim during those screenings. And when they fail, asylum seekers never see their day in court, as the process entirely happens within the purview of DHS—even though DHS has wide discretion not to use expedited removal and give people access to immigration courts.

Rather than build asylum processes that maximize access to due process, the agencies have proposed to place more people in expedited removal, making USCIS the gatekeeping agency. NIJC expressed serious concerns that the agencies once again favor speed over fairness. Seeking asylum at the U.S. border is a lawful right to protect, not to manage through expedited processes.

Some positive changes
The agencies offer some helpful proposals that could improve the lives of asylum seekers. For example, the rule proposes to fulfill the “one-year” deadline through the initial screenings. This small but important change would mean that many people would no longer face an administrative bar that prevented them from seeking asylum.

The rule also tips the scale towards nonadversarial hearings before USCIS, an agency that is not tasked with the deportations or prosecutions of migrants. This is largely a welcome change, as USCIS officers are frequently better trained to treat asylum seekers with dignity. However, the proposed rule also seeks to greatly expand USCIS’ authority, by granting USCIS officers the power to order asylum seekers removed if they lose their claim (a power normally left to immigration judges) and truncates the key safeguard of immigration judge review. NIJC reviews the positive changes the agencies propose and offers recommendations to improve the agencies’ proposed rule and better align with the goal to promote justice and dignity for asylum seekers.

Read NIJC’s full comment here.