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New US Asylum Guidance Takes Effect on a Limited Basis

Migrants walk past razor wire fencing to be taken by the Border Patrol after crossing the Rio Grande river towards the U.S. in Eagle Pass, Texas, May 22, 2022.

New guidance aimed at streamlining the asylum process and removing cases from the backlogged U.S. immigration courts took effect this week along the U.S.-Mexico border, but only on a limited basis.

The U.S. Department of Homeland Security (DHS) announced the rule in March. It applies only to those migrants seeking asylum at the border who were placed in expedited removal proceedings after May 31.

“Individuals who qualify for asylum will receive protection more swiftly, and those who are not eligible will be promptly removed rather than remaining in the U.S. for years while their cases are pending,” DHS Secretary Alejandro Mayorkas said in a statement Thursday.

“We are delivering justice quickly, while also ensuring due process,” he added.

How does it work?

The first step is a credible fear interview. During this interview, asylum-seekers must convince a federal immigration officer that they have a well-founded fear of being persecuted in their home country because of their race, religion, nationality, membership in a particular social group, or political opinions.

If they pass the credible fear interview, migrants will next be sent to a U.S. Citizenship and Immigration Services (USCIS) asylum office in one of six U.S. cities for an asylum merits interview, where their credible fear interview is considered an asylum application.

The asylum merits interview is expected to take place within 21 to 45 days after the credible fear interview. After the asylum merits interview, an asylum officer will either approve or deny the migrant’s asylum request.

Migrants who are granted asylum can proceed to a permanent residence. Their asylum cases are completed within weeks instead of the four to five years that they take now because of an immigration court backlog of at least 1.6 million pending cases.

Who is affected by the new guidance?

Those affected are migrants who were placed in expedited removal proceedings after May 31, are being held in one of two immigration detention centers in Texas, have passed their credible fear interview, and have plans to move to one of the six U.S. cities where asylum merits interviews are conducted — Boston, Los Angeles, Miami, New York, San Francisco, or Newark, New Jersey.

What does 'expedited removal' mean?

Expedited removal is a process that allows immigration officers to deport certain noncitizens quickly, without a hearing before a U.S. immigration judge.

Expedited removal can apply to migrants who are being processed at a port of entry, have entered the United States unlawfully, or cannot prove to a U.S. immigration officer that they have been in the country for at least two years. The process can also apply to immigrants who have committed fraud or misrepresentation.

Immigration officers can apply expedited removal to individuals who entered the U.S. without authorization, were encountered within 100 miles of the Mexican or Canadian border, and were apprehended within two weeks of their arrival to the U.S.

What happens if an immigration officer denies an asylum application?

If a USCIS officer does not grant asylum, the agency will refer the case to an immigration court for streamlined removal proceedings.

There will be specific dockets for these proceedings in these six U.S. cities: Boston, Los Angeles, Miami, New York, San Francisco and Newark, New Jersey.

During the process, an immigration judge will review the migrant’s asylum application and decide whether to grant asylum or agree that the migrant is not eligible for protection under credible fear rules. The judge will then issue a deportation order, and the migrant is expected to “expeditiously be removed from the United States.”

Who supports the policy? Who opposes it?

Though the rule went into effect May 31, its fate remains uncertain. Texas filed a lawsuit against the new rule in the U.S. District Court of the Northern District of Texas, Amarillo Division, on April 28, but it did not affect the rollout of the guidance.

On the same day, 20 Republican-led state attorneys general filed a second lawsuit in the U.S. District Court of the Western District of Louisiana, Lafayette Division.

Both lawsuits argue that immigration judges must make asylum decisions. And both argue that the new guidance will encourage more people to come to the southern border, even though the guidance does not change the initial processing at the border.

Federal judges in Texas and Louisiana did not rule on the states’ request to block the rule from going into effect, which means it will stay in effect for months before a decision.

Immigration advocates, however, criticized the guidance, saying it does not give migrants enough opportunity to assemble an asylum case and appeal eventual denials.