Biden administration to allow immigration officers, not just judges, to decide asylum cases

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The Biden administration is issuing a new rule aimed at cutting the time for processing asylum claims from years to months.

The rule, from the Department of Justice and Department of Homeland Security, will allow U.S. Citizenship and Immigration Services (USCIS) officers to evaluate the asylum applications of people who would be eligible for expedited removal from the country, after such individuals pass a required screening for a credible dear of persecution or torture from their country of origin. Currently, only immigration judges can decide these matters, and this has led to a tremendous backlog of cases which end up dragging on for years.

“The current system for handling asylum claims at our borders has long needed repair,” Homeland Security Secretary Alejandro Mayorkas said in a statement. “Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed. We will process claims for asylum or other humanitarian protection in a timely and efficient manner while ensuring due process.”

Under the new rule, the goal is to resolve these asylum cases within roughly 180 days. A person who has begun expedited removal proceedings and then passed their credible fear assessment would be interviewed by an asylum officer. USCIS would then make a determination regarding their claim instead of an immigration judge, with USCIS deciding whether that person is granted asylum or deported.

“This rule advances our efforts to ensure that asylum claims are processed fairly, expeditiously, and consistent with due process,” Attorney General Merrick Garland said in a statement. “It will help reduce the burden on our immigration courts, protect the rights of those fleeing persecution and violence, and enable immigration judges to issue removal orders when appropriate. We look forward to receiving additional input from stakeholders and the public on this important rule.”

USCIS officials say the initial process for how Customs and Border Patrol and Immigration and Customs Enforcement decide who is placed into expedited removal proceedings will remain the same. Those whose are determined by USCIS not to have a credible fear of persecution or torture will then be able to have that decision reviewed by an immigration judge.

The rule, which was first announced in August 2021, does not apply to unaccompanied minors who enter the U.S., and only applies to those who begin the expedited removal process after it takes effect. USCIS officials expect this to be in late May or early June, as the effective date is 60 days after the rule is published in the Federal Register.

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