Biden Administration Proposes Fast-Track Removal of Some Migrants During Initial Screening
The American Immigration Council reports that on May 9 the Biden administration proposed a rule that would let asylum officers consider and apply certain bars during initial border screening interviews, with public comments due by June 12, 2024. The article describes the proposal's scope, USCIS estimates of how many people it would affect, and advocates' concerns about transparency in expedited removal and the lack of legal representation.
Reported by the American Immigration Council — On May 9, the Biden administration proposed a rule that would allow asylum officers to consider and apply certain restrictions or 'bars' during the initial border asylum screening process. Currently, these restrictions are considered by immigration judges at the full hearing stage of the asylum process. The public may submit comments until June 12, 2024.
The proposal by U.S. Citizenship and Immigration Services (USCIS) aims to reduce the resources the U.S. government spends on individuals who are otherwise ineligible for asylum or withholding of removal. The rule would apply to asylum seekers in expedited removal proceedings, a fast-track removal process in which lower-level immigration officials quickly remove certain noncitizens without a hearing. If noncitizens claim a fear of returning to their home country, they must undergo an interview to determine whether they may be eligible for protection under U.S. law.
The proposal gives asylum officers discretion, during these interviews (known as credible fear or reasonable fear interviews), to consider whether an individual “appears” to fall under any of the following:
- Whether they have been convicted of a particularly serious crime.
- Whether they have participated in the persecution of others.
- Whether they have committed a serious crime abroad.
- Whether they pose a threat to national security.
- Whether they have engaged in terrorist activities.
If USCIS determines that an asylum seeker may be subject to one of the bars, the person will have an opportunity to prove that the bar does not apply. If they cannot prove this, they will fail the interview and be found not to have a credible fear. Under the proposed rule, even if a person demonstrates a necessary fear qualifying for protection, they may still be found subject to a bar and quickly removed.
USCIS estimates that this change would affect a relatively small number of people, as few immigrants both pass the interview and are flagged as potentially subject to a bar. For example, USCIS states that between fiscal years 2020 and 2023, 2% to 4% of asylum seekers who passed credible fear interviews were flagged as potentially ineligible for protection. Similarly, during the same period, 10% to 20% of those who passed reasonable fear interviews in initial screening were flagged as potentially subject to a bar.
The agency believes this new authority will provide operational flexibility, as it will be used at the discretion of asylum officers and only 'in cases where the asylum officer is confident that the bar can be effectively considered at the credible fear stage.'
However, the proposal raises concerns. First, although USCIS claims that these provisions would affect only a small number of people, the proposal does not include any language limiting 'no credible fear' determinations to cases where there is 'easily verifiable evidence' that a bar applies. Advocates have long complained about the lack of transparency in expedited removal proceedings, meaning it is difficult to know exactly how this new policy will be implemented.
Furthermore, determining whether a person is subject to these restrictions is a complex process requiring factual investigation and legal analysis. Many noncitizens must navigate expedited removal proceedings without the help of a lawyer. This means that immigrants who have just arrived at the border and know nothing about our laws cannot effectively rebut the application of a bar in their case.
Although the Biden administration faces immense pressure on border issues, this proposal is clearly the wrong direction. Its efforts to seek more 'tools' to manage the border have only led to chaotic border policies, with noncitizens facing complex obstacles.
Granting asylum officers discretionary authority to impose mandatory bars in opaque and highly unaccountable expedited removal proceedings will not increase the predictability of the process. Instead, it will result in an unknown number of immigrants being removed to danger.
