July 13, 2022
Federal Agency Rule Expands Asylum Officers’ Authority
Under a Department of Homeland Security (DHS) and
cases in 2021, including 610,000 with pending asylum
Department of Justice (DOJ) interim final rule (IFR) issued
applications (more recent DOJ statistics show even higher
in March 2022, asylum officers (AOs) within DHS’s U.S.
figures). See Procedures for Credible Fear Screening and
Citizenship and Immigration Services (USCIS) may
Consideration of Asylum, Withholding of Removal, and
determine whether non-U.S. nationals (“aliens” under
CAT Protection Claims by Asylum Officers, 86 Fed. Reg.
governing law) encountered at the border who show a
46,906 (Aug. 20, 2021). As a result, average adjudication
credible fear of persecution or torture (“credible fear”) are
times for asylum claims originating at the border have often
entitled to asylum and related protections. See Procedures
been several years. Thus, the agencies argued, transferring
for Credible Fear Screening and Consideration of Asylum,
initial responsibility for adjudicating those claims from IJs
Withholding of Removal, and CAT Protection Claims by
to USCIS would reduce backlogs and create a more
Asylum Officers, 87 Fed. Reg. 18,078 (Mar. 29, 2022). The
efficient asylum processing system.
IFR, which shall be implemented in a phased manner,
Credible Fear and Asylum Process under
departs from prior regulations that strictly authorized
the IFR
immigration judges (IJs) within DOJ’s Executive Office for
If an alien subject to expedited removal shows a credible
Immigration Review to adjudicate those asylum claims.
fear, USCIS—rather than referring the case for an IJ’s
This In Focus provides an overview of the IFR.
adjudication in formal removal proceedings—may schedule
Statutory and Regulatory Background
a nonadversarial, “asylum merits interview” for an AO’s
In general, aliens within the interior of the United States
consideration of asylum. Following the interview, the AO
who commit immigration violations may be placed in
will issue a decision granting or denying asylum. If the
“formal,” adversarial removal proceedings, and may pursue
alien fails to show a credible fear and requests an IJ’s
relief from removal in the course of those proceedings. In
review of the negative credible fear finding (or refuses or
contrast, many aliens arriving to the United States, or who
fails to either request or decline such review), the AO will
have recently entered the country without inspection, are
refer the case for an IJ’s review. If the IJ determines that the
subject to an “expedited removal” process under
alien has a credible fear, the IJ will refer the case to USCIS
§ 235(b)(1) of the Immigration and Nationality Act (INA).
for adjudication (alternatively, DHS may begin formal
This process generally permits immigration officers to
removal proceedings during which the alien may pursue
order the removal of covered aliens without further review.
asylum before an IJ). If the IJ concurs with the negative
However, if an alien subject to expedited removal shows an
credible fear finding, the alien is subject to removal, but
intent to seek asylum or fear of persecution if removed, an
USCIS may reconsider that finding.
AO must assess whether the alien has a “credible fear”
supporting consideration of the alien’s claim for relief. The
If USCIS adjudicates asylum, the written record of the
INA instructs that, if a credible fear is shown, the alien
positive credible fear finding will serve as the alien’s
“shall be detained for further consideration of the
asylum application (in most other cases, an alien seeking
application for asylum.” If a credible fear is not shown, the
asylum has to separately file an application). The AO
alien may request an IJ’s review of the negative credible
generally must conduct the asylum merits interview within
fear finding. Since the implementation of expedited
45 days after serving the alien with a positive credible fear
removal in 1997, DHS and DOJ regulations have provided
finding (made either by the AO or an IJ), but the interview
that aliens who establish a credible fear shall be placed in
may not be scheduled fewer than 21 days after service to
formal removal proceedings for an IJ’s consideration of
afford the alien time to prepare. The alien has a right to
their claim for asylum or related relief. 8 C.F.R. §§ 208.30,
counsel at no expense to the government, and may present
1208.30. These regulations have also provided that, if
witnesses or affidavits during the interview. The AO may
USCIS makes a negative credible fear determination and an
obtain an interpreter’s assistance at the interview. Failure to
IJ overturns that finding upon review, the alien may pursue
appear at the interview may result in referral of the alien to
asylum and related relief in formal removal proceedings.
formal removal proceedings.
Justification for the IFR
If an asylum claim is denied, the AO will issue an order of
DHS and DOJ have argued that increasing numbers of
removal, but may consider the alien’s eligibility for
asylum claims—driven largely by changing demographics
withholding of removal and protection under the
of alien encounters at the southwest border—have caused
Convention Against Torture (CAT). These protections bar
long asylum adjudication backlogs in immigration courts.
an alien’s removal to the country of persecution or torture
According to the agencies, the number of individuals
(but not necessarily to another country). Unlike asylum,
initially screened for expedited removal who presented
they provide no path to lawful permanent resident status. If
asylum claims rose to 105,000 in 2019. The pending
the alien requests further review of the asylum denial, the
immigration courts caseload reached about 1.3 million
AO will refer the alien’s asylum application, along with any
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Federal Agency Rule Expands Asylum Officers’ Authority
written findings on withholding of removal and CAT
benefit,” enabling paroled aliens to be released from the
protection, to an IJ for de novo adjudication in “streamlined
agency’s physical custody. Long-standing regulations,
removal proceedings.” The AO’s decision and removal
codified at 8 C.F.R. § 235.3, have allowed parole of aliens
order are final unless the alien requests review.
placed in expedited removal, including pending a credible
fear determination, only if parole “is required to meet a
If an AO denies asylum and the case is referred for
medical emergency or is necessary for a legitimate law
streamlined removal proceedings, a master calendar (MC)
enforcement objective.” The regulations have also
hearing (where the IJ advises the alien of his or her rights
permitted parole on other grounds if an alien subject to
and the purpose of the proceedings) is to occur 30–35 days
expedited removal is placed into formal removal
after a Notice to Appear (the charging document that starts
proceedings, including when the “continued detention is not
removal proceedings) is served. A status conference must
in the public interest” and the alien is not a security or flight
be held 30 days after the MC hearing (or no later than 35
risk. 8 C.F.R. §§ 208.30(f), 212.5(b).
days if it cannot be held on that date). The status conference
is intended to address the charges of removability against
The IFR amends the regulations by authorizing parole of
the alien, identify and narrow the issues, determine whether
those who are still in expedited removal, including pending
the case can be decided on the documentary record, and
a credible fear determination, on a less restricted basis,
potentially prepare the case for a merits hearing. The IJ may
including if “continued detention is not in the public
hold more status conferences if necessary.
interest” and the alien is not a security or flight risk. Aliens
with positive credible fear determinations whose asylum
An IJ may waive a merits hearing and decide the alien’s
claims are being considered by USCIS may also be paroled
application for asylum and related protections based solely
on similar grounds.
on the documentary record (i.e., the record of proceedings
Implementation of the IFR
before the AO and the AO’s decision) if (1) neither party
USCIS began implementation of the IFR on May 31, 2022.
has requested to present testimony and DHS has stated that
According to an agency fact sheet, only adults and families
it waives cross-examination; or (2) the alien has requested
placed in expedited removal after that date, and who show
to present testimony, DHS has stated that it waives cross-
intention to seek asylum or express a fear of persecution,
examination and does not intend to present testimony or
might be subject to the new asylum process. The IFR does
other evidence, and the IJ determines that the application
not apply to unaccompanied children, who under federal
can be granted without further testimony.
law can only be placed in formal removal proceedings, not
expedited removal. 8 U.S.C. § 1232(a)(5)(D).
If the case cannot be decided on the documentary record,
the IJ must hold a merits hearing within 60 days after the
USCIS is implementing the IFR in a phased manner,
MC hearing (or no later than 65 days if it cannot be held
starting with the referral of a few hundred aliens each
earlier). The alien may testify and potentially offer more
month for asylum merits interviews. The new procedures
evidence at the hearing. The IJ may schedule a “continued
merits hearing” (generally no later than 30 days after the
will first be implemented only for aliens housed at two
detention facilities in Texas. At these locations, AOs will
initial merits hearing) if the case cannot be completed at
conduct credible fear interviews telephonically, and refer
that time. The IJ generally must issue an oral decision on
those who establish a credible fear for asylum merits
the date of the final merits hearing, or no later than 30 days
interviews only if they indicate an intent to reside in
after the status conference if the IJ determines that no
Boston, Los Angeles, Miami, New York, Newark, or San
hearing is necessary.
Francisco (where the merits interviews will take place), and
DHS decides to release them from detention. Upon release,
If the IJ grants asylum, the alien’s removal order will be
the aliens may be supervised and monitored under an
vacated. If the IJ denies asylum but the AO had determined
alternatives to detention program. If USCIS denies asylum,
that the alien is eligible for withholding of removal or CAT
it will refer the case (including its findings on withholding
protection, the IJ will enter an order of removal but grant
and CAT protection) for streamlined removal proceedings
the applicable protection, unless DHS produces evidence
that will take place in the six cities listed above.
that was not part of the AO proceedings showing that the
alien does not qualify for such protection. Conversely, if the
Legal Challenges
AO had found (or DHS later shows) the alien ineligible for
The States of Arizona, Arkansas, Florida, Georgia, Idaho,
withholding or CAT protection, the IJ must independently
Kansas, Kentucky, Louisiana, Mississippi, Missouri,
determine whether the alien qualifies for those protections.
Montana, Nebraska, Oklahoma, South Carolina, Texas, and
The alien may appeal the IJ’s decisions on asylum,
West Virginia have brought suit challenging the IFR. They
withholding, and CAT protection to the Board of
argue that the IFR violates governing statute by allowing
Immigration Appeals.
AOs, rather than IJs, to adjudicate asylum applications filed
Detention and Parole Provisions
by those with positive credible fear determinations. The
states also claim that the IFR unlawfully expands DHS’s
The IFR also addresses the detention of aliens in expedited
use of parole for aliens subject to expedited removal. To
removal. INA § 235(b)(1) provides that aliens screened for
date, the federal district courts have not issued decisions on
expedited removal, including those found to have a credible
the merits of the states’ claims.
fear, are subject to mandatory detention. Under INA §
212(d)(5), however, DHS may “parole” applicants for
Hillel R. Smith, Legislative Attorney
admission (including aliens subject to expedited removal)
“for urgent humanitarian reasons or significant public
IF12162
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Federal Agency Rule Expands Asylum Officers’ Authority


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