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Biden’s Asylum Process Proposal Could Cut Wait Times By Years

Aug. 31, 2021, 8:00 AM

President Biden’s Department of Homeland Security (DHS) and Department of Justice (DOJ) announced on Aug. 18 a new policy aiming to streamline the political asylum application process. With a goal of decreasing the backlog of these claims before immigration courts, the change would shift processing by having U.S. Citizenship and Immigration Services asylum officers review applications instead of immigration judges. These officers, effectively now acting as judges, will decide whether an applicant deserves ayslum.

The DHS’s and DOJ’s notice of proposed rulemaking provides a 60-day period for the public to comment on the policy change.

Under the current system, potential entrants into the country met at or near the border who are placed into an “expedited” removal process are screened by U.S. Citizenship and Immigration Services officers to determine whether the applicants can continue with their asylum claims. If the applicants pass what is called a credible fear screening, the cases move to the immigration courts.

Potential to Reduce Waiting Time by Years

Under Biden’s new policy, if the entrant passes the credible fear screening, the case would be heard by an asylum officer instead of an immigration judge. This change could potentially reduce the waiting period by years for many of these claims.

Department of Homeland Security Secretary Alejandro N. Mayorkas recently stated, “Individuals who are eligible will receive relief more swiftly, while those who are not eligible will be expeditiously removed. We are building an immigration system that is designed to ensure due process, respect human dignity, and promote equity.” Mayorkas said he is confident that these “proposed changes will significantly improve DHS’s and DOJ’s ability to more promptly and efficiently consider the asylum claims of individuals encountered at or near the border, while ensuring fundamental fairness.”

Under the new policy, if the asylum officer, who may also consider other forms of protection, finds the application merits asylum, the applicant would be allowed to stay in the country legally, and one year after the grant asylum the applicant may apply for legal permanent resident status. However, if the asylum officer denies the application, an applicant can appeal that determination before an immigration judge, and another appeal of that determination is also potentially available. If appeals are not attempted or are denied, the applicant would be subject to deportation.

Another aspect of the new policy is a change to the grants of parole prior to ultimate asylum determinations. It would allow the DHS to grant parole when “detention is unavailable or impracticable,” in addition to the existing criteria involving medical emergencies and law enforcement objectives. The new policy, however, will not apply to unaccompanied children (who have a different process) or to those who are already in U.S. judicial proceedings.

Questions and Concerns

While further details of the new program remain in flux during the comment period, there exists a host of questions and potential concerns with the policy change.

At first blush, and certainly under an administration that favors streamlining the asylum process, there seems to be little doubt of the effect of the plan: It will likely shorten the length of the asylum process. However, the change is a policy shift, and not a new law passed by Congress. As such, a subsequent administration may merely terminate this program, which is far easier to do than passing new legislation.

It appears given the difficult history of passing legislation on immigration reform, the Biden administration evidently decided this executive policy change was more efficient and likely more effective. But the fact remains, it can be easily modified or ended by a future president.

On a related note, the Biden policy change may actually one day serve to have the opposite effect. For instance, a future president who has immigration views resembling that of former President Trump can readily change related policies to direct asylum officers to actually make it more difficult for asylum seekers to obtain relief. While this potential is endemic to our political system, the point is made here to highlight the policy shift is not the panacea that the announcement seems to suggest.

While ultimately the new policy may run smoothly, there remains much to be seen as details of the new policy awaits the culmination of the required notice-and-comment period to expire. For instance, it is not clear how asylum officers can ultimately use their discretion under this or future administrations.

It is actually possible, depending upon the type of process ultimately passed and used by the asylum officers, the process may be as long, if not longer than the current system. In all probability, however, the Biden administration already has a vision or plan with a truncated asylum review process that is far shorter in duration than immigration court proceedings. If it does not have one already in mind, it should develop a fairly detailed set of parameters and limits for the process to be used by asylum officers.

Larger Labor Force

A host of other observations also merit some mention. The new policy in addition to expediting asylum applications, will also potentially have the salutary effect of increasing our labor force and consequently our economy because these asylees will presumably be readily granted work authorizations.

Despite claims by the Trump administration that refugees were burdens to the economy, the reality is otherwise. A 2019 study by the Center for Public Integrity, for instance, found that during a 10-year period between 2005-2014, refugees and asylees from 1980 on contributed $63 billion more in revenues (i.e., taxes) than they used in public services.”

But with this new program, there will be costs. For instance, it appears the proposed change will require significant number of new government hires in order to implement the policy, with some estimates ranging from 1000 to 2000 new ayslum officers and related personnel.

While the optics of this policy change is far from ideal in the midst of thousands of Afghan refugees, a status akin to political asylees, seeking to enter the U.S., and the resulting national security debates raised by it, Biden’s proposal here, if implemented effectively and efficiently, will likely provide for a more equitable system for those seeking entry into this country out of fear of persecution in their homeland. Indeed, we appear to have returned to living up to our inclusive national ethos.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Ediberto Román is a law professor and nationally acclaimed constitutional law, immigration, and critical race theory scholar at Florida International University in Miami. He edits NYU Press Series, “Citizenship and Migration in the Americas.”