The US asylum system has undergone significant changes in the past few years, affecting the rights and prospects of thousands of migrants seeking protection from persecution and violence in their home countries. This blog post will provide a brief overview of the legal framework and recent developments in US asylum law, as well as some implications and challenges for asylum seekers and attorneys.
What is asylum and how does it work in the US?
Asylum is a form of humanitarian protection granted to individuals who meet the definition of a refugee under international and US law. A refugee is someone who is unable or unwilling to return to their country of origin because of a well-founded fear of persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group.1
There are three ways of obtaining asylum in the US: the affirmative process, the asylum merits interview with USCIS after a positive credible fear determination, and the defensive process.
- The affirmative process applies to individuals who are not in removal proceedings before an immigration judge and who submit an asylum application to USCIS within one year of their arrival in the US (unless they qualify for an exception). They appear before a USCIS asylum officer for a non-adversarial interview and receive a decision on their claim. If their claim is denied, they may be referred to immigration court for removal proceedings, where they can renew their asylum claim before an immigration judge.
- The asylum merits interview with USCIS after a positive credible fear determination applies to individuals who are subject to expedited removal and who express a fear of returning to their country of origin to a CBP or ICE officer. They are screened by a USCIS asylum officer to determine if they have a credible fear of persecution or torture, which is a significant possibility of establishing eligibility for asylum or other forms of relief. If they pass the screening, they are placed in regular removal proceedings before an immigration judge, but they may also request an asylum merits interview with a USCIS asylum officer, who can grant or deny their claim. If their claim is denied, they can appeal to the immigration judge.
- The defensive process applies to individuals who are in removal proceedings before an immigration judge, either because they were placed there by USCIS after a negative decision on their affirmative asylum claim, by ICE or CBP for immigration violations, or because they were subject to expedited removal, found to have a credible fear of persecution or torture, and issued a notice to appear. They must submit an asylum application to the immigration judge and present their case in an adversarial hearing, where they face cross-examination by a government attorney and a decision by the judge. If their claim is denied, they can appeal to the Board of Immigration Appeals and, if necessary, to a federal court.
What are the recent changes in US asylum law and policy?
The US asylum system has been affected by a series of executive actions, administrative rules, and court decisions that have introduced new restrictions and requirements for asylum seekers, as well as changes in the processing and adjudication of asylum claims. Some of the most notable changes are:
- The Circumvention of Lawful Pathways (CLP) rule, which was finalized by the Biden administration in March 2023, following a similar rule issued by the Trump administration in July 2022. The rule presumes that individuals who enter the US through its southwest land border or adjacent coastal borders are ineligible for asylum, unless they can demonstrate an exception to the rule or rebut the presumption. The rule is based on the premise that asylum seekers should seek protection in the first safe country they transit through, rather than circumventing lawful pathways to the US. The rule has been challenged in court and is currently subject to a stay order by the Ninth Circuit Court of Appeals.
- The Remain in Mexico policy, which was implemented by the Trump administration in January 2019 and suspended by the Biden administration in January 2021. The policy required certain asylum seekers who arrived at the US-Mexico border to wait in Mexico while their cases were pending in the US immigration courts. The policy was intended to deter fraudulent or frivolous asylum claims and reduce the backlog of cases in the US. However, the policy also exposed asylum seekers to dangerous and inhumane conditions in Mexico, where they faced violence, extortion, kidnapping, and lack of access to legal and humanitarian assistance. The policy was challenged in court and was found to be unlawful by a federal judge in April 2021. The Biden administration has appealed the decision and is reviewing the policy.
- The Asylum Cooperative Agreements (ACAs), which were signed by the Trump administration with Guatemala, Honduras, and El Salvador in 2019 and 2020. The ACAs allowed the US to transfer certain asylum seekers who arrived at the US-Mexico border to one of these countries, where they would have to seek protection or return to their home countries. The ACAs were based on the assumption that these countries were safe and capable of providing adequate protection to asylum seekers, despite evidence of widespread violence, corruption, and human rights violations in the region. The ACAs were suspended by the Biden administration in February 2021 and terminated in June 2021.
- The new rule reshaping the US asylum system, which was finalized by the Biden administration in March 2023. The rule gives asylum officers more authority by allowing them to hear and decide asylum claims – cases that are usually assigned to immigration judges – when migrants present at the US southern border. The rule applies to migrants who are subject to expedited removal. Unaccompanied children are exempt. The rule is intended to speed up the resolution of asylum claims and reduce the burden on the immigration courts, which have a backlog of more than 2 million cases.4 The rule also aims to protect the rights of asylum seekers and ensure due process in the asylum process.
What are the implications and challenges for asylum seekers and advocates?
The recent changes in US asylum law and policy have created a complex and dynamic legal landscape for asylum seekers and attorneys, who face multiple obstacles and uncertainties in accessing and obtaining protection in the US. Some of the implications and challenges are:
- The CLP rule, if implemented, would effectively bar most asylum seekers who arrive at the US-Mexico border from applying for asylum in the US, unless they can prove that they qualify for an exception or that they did not have a reasonable opportunity to seek protection in another country. This would require asylum seekers to present evidence and arguments that may be difficult or impossible to obtain or verify, especially in the context of expedited removal, where they have limited access to legal counsel and information. The rule would also undermine the principle of non-refoulement, which prohibits the return of refugees to a country where they face a risk of persecution or torture.
- The Remain in Mexico policy, if reinstated, would force asylum seekers to endure prolonged and precarious conditions in Mexico while waiting for their cases to be heard in the US. This would expose them to physical and psychological harm, as well as violations of their rights and dignity. The policy would also impede their access to legal representation and due process in the US, as well as their ability to present evidence and witnesses in support of their claims.
- The ACAs, if revived, would transfer asylum seekers to countries that are not safe or capable of providing effective protection to refugees, where they would face similar or worse risks than in their home countries. The ACAs would also deprive asylum seekers of their right to seek asylum in the US, where they may have family ties, cultural affinity, or other legitimate reasons to prefer. The ACAs would also violate the principle of non-refoulement and the obligation of the US to ensure that the countries to which it transfers asylum seekers comply with international refugee and human rights standards.
- The new rule reshaping the US asylum system, if successful, would expedite the resolution of asylum claims and provide asylum seekers with a more humane and efficient process. The rule would also reduce the backlog and the pressure on the immigration courts, allowing them to focus on more complex and contested cases. However, the rule also poses some challenges and risks, such as ensuring the quality and consistency of asylum decisions by asylum officers, who may have less experience and training than immigration judges, and providing adequate safeguards and oversight for the asylum process, such as the availability of judicial review, the provision of legal counsel, and the protection of vulnerable groups.
Conclusion
The US asylum system is undergoing a period of transition and transformation, as the Biden administration seeks to reverse some of the restrictive and controversial policies of the previous administration and to reform and improve the asylum process. However, the legal and policy changes are not without challenges and uncertainties, as they face opposition and litigation from various actors and interests, as well as practical and operational constraints and difficulties. Asylum seekers and attorneys need to be aware of and prepared for the changing and complex legal landscape and to continue to advocate for the rights and protection of refugees in the US and beyond.
