Federal Agency Rule Expands Asylum Officers’ Authority

Federal Agency Rule Expands Asylum Officers’ Authority

Updated December 9, 2022
Federal Agency Rule Expands Asylum Officers’ Authority
Under a Department of Homeland Security (DHS) and
asylum claims originating at the border have often been
Department of Justice (DOJ) interim final rule (IFR) issued
several years. Thus, the agencies argued, transferring initial
in March 2022, asylum officers (AOs) within DHS’s U.S.
responsibility for adjudicating those claims from IJs to
Citizenship and Immigration Services (USCIS) may
USCIS would reduce backlogs and create a more efficient
determine whether non-U.S. nationals (“aliens” under
asylum processing system.
governing law) encountered at the border who show a
Credible Fear and Asylum Process under
credible fear of persecution or torture (“credible fear”) may
the IFR
seek asylum and related protections. See Procedures for
If an alien subject to expedited removal shows a credible
Credible Fear Screening and Consideration of Asylum,
fear, USCIS—rather than referring the case for an IJ’s
Withholding of Removal, and CAT Protection Claims by
adjudication in formal removal proceedings—may schedule
Asylum Officers, 87 Fed. Reg. 18,078 (Mar. 29, 2022). The
a nonadversarial, “asylum merits interview” for an AO’s
IFR, which is being implemented in a phased manner,
consideration of asylum. Following the interview, the AO
departs from prior regulations that strictly authorized
will issue a decision granting or denying asylum. If the
immigration judges (IJs) within DOJ’s Executive Office for
alien fails to show a credible fear and requests an IJ’s
Immigration Review to adjudicate those asylum claims.
review of the negative credible fear finding (or refuses or
This In Focus provides an overview of the IFR.
fails to either request or decline such review), the AO will
Statutory and Regulatory Background
refer the case for an IJ’s review. If the IJ determines that the
In general, aliens within the interior of the United States
alien has a credible fear, the IJ will refer the case to USCIS
who commit immigration violations may be placed in
for adjudication (alternatively, DHS may begin formal
“formal” removal proceedings, and may pursue relief from
removal proceedings during which the alien may pursue
removal in the course of those proceedings. In contrast,
asylum before an IJ). If the IJ concurs with the negative
many aliens arriving to the United States, or who have
credible fear finding, the alien is subject to removal, but
recently entered the country without inspection, are subject
USCIS may reconsider that finding.
to an “expedited removal” process under § 235(b)(1) of the
Immigration and Nationality Act (INA). This process
If USCIS adjudicates asylum, the written record of the
generally permits immigration officers to order the removal
positive credible fear finding will serve as the alien’s
of covered aliens without further review. However, if an
asylum application (in most other cases, an alien seeking
alien subject to expedited removal shows an intent to seek
asylum has to separately file an application). The AO
asylum or fear of persecution if removed, an AO must
generally must conduct the asylum merits interview within
assess whether the alien has a “credible fear” supporting
45 days after serving the alien with a positive credible fear
consideration of the alien’s claim for relief. The INA
finding (made either by the AO or an IJ), but the interview
instructs that, if a credible fear is shown, the alien “shall be
may not be scheduled fewer than 21 days after service to
detained for further consideration of the application for
afford the alien time to prepare. The alien has a right to
asylum.” If a credible fear is not shown, the alien may
counsel at no expense to the government, and may present
request an IJ’s review of the negative credible fear finding.
witnesses or affidavits during the interview. The AO may
Since the implementation of expedited removal in 1997,
obtain an interpreter’s assistance at the interview. Failure to
DHS and DOJ regulations have provided that aliens who
appear at the interview may result in referral of the alien to
establish a credible fear shall be placed in formal removal
formal removal proceedings.
proceedings for an IJ’s consideration of their claim for
asylum or related relief. 8 C.F.R. §§ 208.30, 1208.30. These
If an asylum claim is denied, the AO will issue an order of
regulations have also provided that, if USCIS makes a
removal, but may consider the alien’s eligibility for
negative credible fear determination and an IJ overturns that
withholding of removal and protection under the
finding upon review, the alien may pursue asylum and
Convention Against Torture (CAT). These protections bar
related relief in formal removal proceedings.
an alien’s removal to the country of persecution or torture
Justification for the IFR
(but not necessarily to another country). Unlike asylum,
they provide no path to lawful permanent resident status. If
DHS and DOJ have argued that increasing numbers of
the alien requests further review of the asylum denial, the
asylum claims—driven largely by changing demographics
AO will refer the alien’s asylum application, along with any
of alien encounters at the southwest border—have caused
written findings on withholding of removal and CAT
long asylum adjudication backlogs in immigration courts.
protection, to an IJ for de novo adjudication in “streamlined
According to EOIR statistics, the pending immigration
removal proceedings.” The AO’s decision and removal
courts caseload reached nearly 1.8 million cases at the end
order are final unless the alien requests review.
of FY2022, including about 703,000 with pending asylum
applications. As a result, average adjudication times for
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Federal Agency Rule Expands Asylum Officers’ Authority
If an AO denies asylum and the case is referred for
fear determination, only if parole “is required to meet a
streamlined removal proceedings, a master calendar (MC)
medical emergency or is necessary for a legitimate law
hearing (where the IJ advises the alien of his or her rights
enforcement objective.” The regulations have also
and the purpose of the proceedings) is to occur 30-35 days
permitted parole on other grounds if an alien subject to
after a Notice to Appear (the charging document that starts
expedited removal is placed into formal removal
removal proceedings) is served. A status conference must
proceedings, including when the “continued detention is not
be held 30 days after the MC hearing (or no later than 35
in the public interest” and the alien is not a security or flight
days if it cannot be held on that date). The status conference
risk. 8 C.F.R. §§ 208.30(f), 212.5(b).
is intended to address the charges of removability against
the alien, identify and narrow the issues, determine whether
The IFR amends the regulations by authorizing parole of
the case can be decided on the documentary record, and
those who are still in expedited removal, including pending
potentially prepare the case for a merits hearing. The IJ may
a credible fear determination, on a less restricted basis,
hold more status conferences if necessary.
including if “continued detention is not in the public
interest” and the alien is not a security or flight risk. Aliens
An IJ may waive a merits hearing and decide the alien’s
with positive credible fear determinations whose asylum
application for asylum and related protections based solely
claims are being considered by USCIS may also be paroled
on the documentary record (i.e., the record of proceedings
on similar grounds.
before the AO and the AO’s decision) if (1) neither party
Implementation of the IFR
has requested to present testimony and DHS has stated that
USCIS began implementing the IFR on May 31, 2022.
it waives cross-examination; or (2) the alien has requested
According to an agency fact sheet, only adults and families
to present testimony, DHS has stated that it waives cross-
placed in expedited removal after that date, and who show
examination and does not intend to present testimony or
intention to seek asylum or express a fear of persecution,
other evidence, and the IJ determines that the application
might be subject to the new asylum process. The IFR does
can be granted without further testimony.
not apply to unaccompanied children, who under federal
law can only be placed in formal removal proceedings, not
If the case cannot be decided on the documentary record,
expedited removal. 8 U.S.C. § 1232(a)(5)(D).
the IJ must hold a merits hearing within 60 days after the
MC hearing (or no later than 65 days if it cannot be held
USCIS has implemented the IFR in a phased manner, with
earlier). The alien may testify and potentially offer more
the referral of a few hundred aliens each month for asylum
evidence at the hearing. The IJ may schedule a “continued
merits hearing” (generally no later than 30 days after the
merits interviews. These procedures are mainly being
implemented for aliens housed at certain detention
initial merits hearing) if the case cannot be completed at
facilities. AOs conduct credible fear interviews
that time. The IJ generally must issue an oral decision on
telephonically and refer those who establish a credible fear
the date of the final merits hearing, or no later than 30 days
for asylum merits interviews only if they indicate an intent
after the status conference if the IJ determines that no
to reside in certain locations where the merits interviews
hearing is necessary.
will take place (e.g., New York), and if DHS decides to
release them from detention. Upon release, DHS may
If the IJ grants asylum, the alien’s removal order will be
supervise and monitor the alien under DHS’s Alternatives
vacated. If the IJ denies asylum but the AO had determined
to Detention Program. USCIS also applies the IFR
that the alien is eligible for withholding of removal or CAT
procedures for some non-detained aliens encountered at the
protection, the IJ will enter an order of removal but grant
border who show a credible fear and intend to reside in one
the applicable protection, unless DHS produces evidence
of the specified locations.
that was not part of the AO proceedings showing that the
alien does not qualify for such protection. Conversely, if the
If USCIS denies asylum, it is to refer the case (including its
AO had found (or DHS later shows) the alien ineligible for
findings on withholding and CAT protection) for
withholding or CAT protection, the IJ must independently
streamlined removal proceedings in one of several specified
determine whether the alien qualifies for those protections.
hearing locations.
The alien may appeal the IJ’s decisions on asylum,
Legal Challenges
withholding, and CAT protection to the Board of
Immigration Appeals.
Arizona, Arkansas, Florida, Georgia, Idaho, Kansas,
Kentucky, Louisiana, Mississippi, Missouri, Montana,
Detention and Parole Provisions
Nebraska, Oklahoma, South Carolina, Texas, and West
The IFR also addresses the detention of aliens in expedited
Virginia have brought suit challenging the IFR in various
removal. INA § 235(b)(1) provides that aliens screened for
district courts. They argue that the IFR violates governing
expedited removal, including those found to have a credible
statute by allowing AOs, rather than IJs, to adjudicate
fear, are subject to mandatory detention. Under INA §
asylum applications. The states also claim that the IFR
212(d)(5), however, DHS may “parole” applicants for
unlawfully expands DHS’s use of parole for aliens subject
admission (including aliens subject to expedited removal)
to expedited removal. To date, the federal district courts
“for urgent humanitarian reasons or significant public
have not issued decisions on the merits of the states’ claims.
benefit,” enabling paroled aliens to be released from the
agency’s physical custody. Long-standing regulations,
Hillel R. Smith, Legislative Attorney
codified at 8 C.F.R. § 235.3, have allowed parole of aliens
IF12162
placed in expedited removal, including pending a credible
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Federal Agency Rule Expands Asylum Officers’ Authority

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