New rule aims to speed up removal of limited group of migrants who don't qualify for asylum

The proposal, released Thursday, is meant to impact migrants with criminal records or those who would otherwise be eventually deemed ineligible for asylum in the United States.
President Joe Biden steps out of Air Force One as he arrives at Milwaukee Mitchell International Airport.
Posted at 10:25 AM, May 09, 2024

A new Biden administration rule announced Thursday aims to speed up asylum processing at the southern border for a a limited group of people believed to have committed serious crimes or who have terrorist links, and ultimately more quickly eject them from the country.

The change comes as the administration has been struggling to demonstrate to voters during an election in which immigration is a key issue that it has a handle on the southern border. Republicans have consistently slammed the Biden administration over policies that they say have worsened problems at the border.

In a statement announcing the changes, the Department of Homeland Security said migrants who are deemed to pose a public threat are taken into custody but a determination on whether they're eligible for asylum isn't made until later in the asylum process. Under the proposed rule, asylum officers hearing cases at an initial screening stage called credible fear screening — that's intended to happen just days after a person arrives in the country — will now be able to consider that criminal history or terrorist links when deciding whether someone should ultimately be removed from the country.

“This will allow DHS to expeditiously remove individuals who pose a threat to the United States much sooner than is currently the case, better safeguarding the security of our border and our country,” the department said in the statement.

Under current law, certain mandatory bars make people ineligible for asylum — for example, if you've been convicted of a particularly serious crime. But those usually come into play when an immigration judge is making a final determination on whether someone gets asylum, and that process can take years. Migrants are usually detained during this time, the department said.

When the rule is in place asylum officers can consider evidence of terrorism links, for example, and use that as a basis for a denial.

The agency gave no figures for how many people would be affected, but said it was a small number.

Republicans immediately criticized the changes as too little. In a statement, House Committee on Homeland Security Chairman Mark E. Green, a Republican from Tennessee, called it an “unserious, politically motivated attempt to address a significant problem the Biden administration itself created.”

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Separately from the rule announced Thursday, the administration is weighing larger executive action to crack down on immigration at the border. But the timing on when that might be announced depends in large part on whether the number of illegal border crossings increases. After hitting a record high in December, they have decreased in recent months in large part due to Mexican government enforcement.

Under U.S. and international law, anyone who comes to the U.S. can ask for asylum. People from all over the world travel to the U.S-Mexico border to seek that protection. To be granted asylum they must prove persecution or fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

It's a high bar, and the majority of people who apply for asylum ultimately don't qualify. But the process can take years in overloaded immigration courts.

Critics have questioned whether the asylum system should be fundamentally changed to make it more restrictive while others say the U.S. has a moral obligation to protect people fleeing for their lives.

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Last year the administration announced another rule aimed at restricting the asylum process but in much more expansive ways than the one announced Thursday. That rule made it extremely difficult for migrants who come directly to the southern border to get asylum unless they use a government app to make an appointment, or they have already tried to seek protection in a country they passed through on their way to the U.S.

Opponents said it’s essentially a rehash of similar efforts by former President Donald Trump. The Biden administration says there are substantial differences between their rule and what Trump tried. That rule is still in place while the issue plays out in court.

Generally, immigration advocates have been wary of any steps that would seek to make the initial credible fear screening harder. They say that migrants are often doing these interviews immediately after surviving life-threatening, perilous trips to the U.S., and that these initial credible fear screenings are designed to have a lower bar than final asylum determinations so that people aren't wrongfully removed.

Gregory Chen, the director of government relations for the American Immigration Lawyers Association, said the rules barring people with criminal or terrorist backgrounds from asylum are important to protect the country. But his concern is that these changes will speed up what is already a “highly complex” legal analysis.

“At that early stage, few asylum seekers will have the opportunity to seek legal counsel or time to understand the consequences,” he said. “Under the current process they have more time to seek legal advice, to prepare their case, and to appeal it or seek an exemption.”