On August 18, the Department of Homeland Security and the Department of Justice released a proposed rule that would reshape the process for individuals seeking asylum in the United States. While the proposal has some positive impacts on immigrant survivors of gender-based violence, some aspects of the proposed rule will also be harmful. Here are some of the ways this proposed rule will impact Tahirih clients and all survivors of gender-based violence.
The Good
Asylum officers, who are trained to conduct interviews in trauma-informed manner, can now rule on individuals’ asylum applications.
When people seeking asylum arrive in the United States, they are often given an interview to determine whether they have a “credible fear” of persecution in their home country. If they do, they are typically placed in proceedings in immigration court in which the government opposes their application for relief.
The proposed rule would instead allow asylum officers with U.S. Citizenship and Immigration Services (USCIS)—not immigration court judges—to hear the asylum claims of many people found to have a credible fear of persecution. Asylum officers receive training on trauma and its effects, and when an asylum officer decides an asylum application, they must conduct a non-adversarial interview with the person seeking asylum. These interviews are often less traumatic for survivors of gender-based violence than adversarial hearings in immigration court.
A survivor’s credible fear interview will be treated as their asylum application.
Congress has required anyone seeking asylum to file an application for asylum within one year of entering the United States. The application is technical, requires people seeking asylum to describe the trauma they experienced, and must be completed in English. The result is that many people seeking asylum, especially those who do not have legal representation, find it impossible to complete the application by the deadline. Under the proposed rule, some people who are found to have a credible fear of persecution in their home countries will automatically satisfy the one-year deadline and start the waiting period for work authorization, because the record of their credible fear interview will be treated as their asylum application.
Due process protections
The proposed rule would also provide some due process protections in connection with the asylum interviews newly conducted by USCIS. People seeking asylum would be entitled to legal counsel or other representation; the government would provide an interpreter for anyone who cannot complete the interview effectively in English; and people would be able to submit additional evidence in support of their asylum applications until shortly before their interview.
Increasing capacity to process asylum claims
The proposed rule states an intent to hire 800 new employees at USCIS, in part to allow the agency to hear 75,000 asylum claims each year. This is a necessary step, because USCIS—which already decides some asylum applications and applications for many other types of relief—is faced with very large and increasing backlogs of undecided applications. Funding for these new employees should, however, come from Congress rather than from increasing the fees paid by survivors and others seeking relief, many of whom cannot afford even the current application fees.
The Bad
Expansion of expedited removal
The proposed rule seeks to greatly expand the use of expedited removal. Expedited removal—a process by which people can be immediately deported to their home country without ever being able to apply for asylum—has almost no procedural safeguards. It has resulted in the deportation of countless survivors with legitimate asylum claims to danger and violence simply because they lack detailed knowledge of how to prove an asylum case under U.S. law and never had the opportunity to consult with a legal representative.
Restriction on survivors to presenting evidence in support of their asylum applications.
Anyone who has an asylum interview with USCIS under the rule that results in a denial of relief can seek to have an immigration judge decide their asylum application anew. But even though the immigration judge’s decision will come months, or even years, after the asylum officer’s decision, the rule would place strict restrictions on the submission of new evidence to the immigration judge and omit a full evidentiary hearing. Given that survivors fleeing for their lives do not stop to collect paperwork, and that it can take a significant amount of time for survivors or their representatives to gather evidence from family members or others in their home country, these restrictions would result in claims being decided without a full record—and in still more erroneous denials of asylum.
Eliminates the option to seek reconsideration of certain asylum cases
The proposed rule would remove an important procedural protection. Now, if an asylum officer finds that someone does not have a credible fear of persecution in their home country, that person can both ask USCIS to reconsider that determination and ask an immigration judge to review the determination. The proposed rule would eliminate the option to seek reconsideration from USCIS.
People seeking asylum also often seek lesser relief, either “withholding of removal,” which prevents their deportation to their home country, or relief under the Convention Against Torture (CAT). Under the proposed rule, when an asylum officer denies asylum to a client but also grants withholding of removal or CAT relief, the person seeking relief cannot ask an immigration judge to review only the denial of asylum. They must either ask the immigration judge review the entire case—including the asylum officer’s grant of non-asylum relief—or live with the asylum officer’s decision. Because people who receive withholding of removal or relief under the Convention Against Torture may not become lawful permanent residents and may not bring family members to the United States, the rule would force survivors of serious trauma to make the impossible choice between risking their own newfound assurance of safety and facing permanent separation from their children and spouse.
What’s Missing
The proposed rule does not say either when or where USCIS asylum officers would hold interviews under the new procedure. These omissions are worrying. Although the proposed rule states that people seeking asylum can bring legal representatives to their interview with USCIS, that right is meaningful only if a person is in a location with an adequate number of lawyers and finds one willing to take their case at low or no cost.
Similarly, the ability to present an asylum case to USCIS is meaningful only if the person seeking asylum has sufficient opportunity to gather evidence and prepare their case. Under the proposed rule, USCIS could—either when the rule becomes final or at any point after that—therefore set timelines and hearing locations that stack the deck in favor of deportations.
