○Recent reports indicate that the Trump administration is proposing a new policy that would enable rapid asylum denials without the necessity of an interview. CBS News disclosed this information based on internal documents, but it’s important to note that this plan primarily affects asylum claims submitted more than one year after an applicant’s arrival. Most of these claims are already prohibited under the asylum laws outlined in Section 208 of the Immigration and Nationality Act (INA).
Understanding the One-Year Bar
According to Section 208(a)(1) of the INA, any individual who is “physically present in the United States” or who has arrived in the country, either legally or otherwise, “may apply for asylum.”
Additionally, the Supreme Court is currently deliberating whether individuals who are on the verge of entering the United States can file for asylum before actually entering the country. A decision on this matter is anticipated later this month.
However, it’s essential to emphasize that what Congress grants, Congress can also revoke. The exceptions outlined in Section 208(a)(2) restrict specific aliens from applying for asylum under Section 208(a)(1).
The most common limitation is found in Section 208(a)(2)(B), which bars application submissions from those who fail to “prove by clear and convincing evidence” that their application was “filed within one year of their arrival in the United States,” a regulation widely referred to as the “one-year bar.”
There is, however, an exception to this rule in Section 208(a)(2)(D). It permits delays in asylum applications if the applicant can demonstrate a “change in circumstances” materially affecting their asylum status or other special circumstances relevant to the delay. Unfortunately, it seems that this exception may also fall under the new policy being proposed.
Types of Asylum Applications
Individuals in the United States can submit asylum applications either to an Immigration Judge (IJ) or to an Asylum Officer (AO) with U.S. Citizenship and Immigration Services (USCIS), depending on their immigration status regarding removal proceedings.
Affirmative asylum claims are assessed by an AO, who will adjudicate applications filed by individuals not currently in deportation proceedings. These applications undergo a “non-adversarial” interview process; while applicants may have legal representation, no Department of Homeland Security (DHS) attorney is present to challenge the claim or present contrary evidence.
Should the AO approve the application, there is no formal avenue for appeal, although the decision may be reviewed by the AO’s supervisor or a higher authority within USCIS.
In cases where an affirmative application is denied, and the applicant is disqualified or entered the country unlawfully, the AO will refer the case to immigration court, transitioning it into a “defensive” asylum application. At these hearings, the government is represented by an Ice attorney who can investigate the applicant’s background and submit additional evidence, possessing the right to appeal any IJ grant of asylum to the Board of Immigration Appeals (BIA).
There are unique considerations for claims made by individuals encountered by Customs and Border Protection (CBP) at points of entry, especially those classified under expedited removal. In such cases, if an applicant demonstrates a “credible fear” of persecution, they may also seek asylum during deportation procedures.
Proposed Regulations Raise Concerns
Parsing through the CBS News report reveals that the Department of Homeland Security (DHS) is contemplating new regulations that would give the AO authority to deny asylum claims outright if they were submitted more than one year after arrival in the U.S., bypassing traditional interview protocols. However, exceptions to the one-year rule may still apply.
The report states, “Under this regulation, the AO would have the power to deny asylum claims if the claim was filed more than one year after arrival in the United States, without conducting an interview as is traditionally practiced.”
Critics argue that bypassing interviews merely checks a box and may be a futile practice if a referral to removal proceedings is deemed inevitable.
Addressing the Backlog of Asylum Claims
Digging deeper into the CBS article uncovers vital information buried toward the end: the staggering backlog of pending asylum claims at USCIS. As of last fall, the agency had 1.5 million asylum claims awaiting resolution.
This figure should not be taken lightly. Funding for USCIS largely relies on application fees, which frequently do not cover the actual costs associated with processing claims. The initial fee for an asylum application (Form I-589) is $100, along with an annual fee of $102 thereafter, both considerably lower than the expenses incurred during adjudication.
The situation becomes even more dire considering USCIS only had 824 asylum officers as of last May, a figure that likely hasn’t seen substantial growth since then. Consequently, each officer is handling approximately 1,700 pending applications, exacerbating the backlog significantly.
In fiscal year 2023, USCIS adjudicated over 46,000 asylum applications, further emphasizing the inefficiencies in the existing system. With 1.45 million I-589 applications pending, a fee of $102 could inadvertently supply amnesty for many who entered the country unlawfully.
The Impact of Proposed Changes
Legal experts have voiced concerns about the potential for applicants to be unfairly placed in deportation proceedings after the one-year deadline without their circumstances being adequately explained.
While these concerns are valid, it’s crucial to remember that even if individuals find themselves mistakenly transferred from the USCIS active asylum system to immigration court, judges must still consider explanations for any late filings beyond the one-year limit.
The IJ’s authority remains equitable to that of the AO’s, allowing successful applicants a pathway to a green card and citizenship, along with the same benefits available under the asylum system.
One notable change under the proposed regulations would be the loss of another opportunity for applicants to have their cases heard by USCIS. However, even under these guidelines, late filings can still be challenged in immigration court, creating limited avenues for reconsideration.
Alignment with Congressional Intent
The anticipated regulatory changes aim to reinforce Congressional intent as articulated in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Earlier reports emphasized that asylum claims are sometimes filed by individuals who are not genuinely persecuted but rather recognize that prolonged adjudication permits them to remain in the U.S. indefinitely.
This vital insight underlines the rationale behind the one-year limit and the amendments introduced in IIRIRA, raising questions about the delay in granting asylum officers the ability to bypass unnecessary interviews and expedite claims that are submitted past legally mandated deadlines.
Ultimately, if the CBS report holds true, the timeworn practices of conducting interviews for late asylum applications—allowing individuals to manipulate the system for extended residency—may soon come to an end.
