The Biden administration finalized its long-anticipated plan for overhauling the asylum system on March 24. The regulation, which is set to go into effect on an interim basis in 60 days, was first put forward for public comment in August 2021.
Asylum seekers arriving at the border and processed under the new regulation would potentially be able to have their entire case adjudicated within 6 months, as opposed to 3-4 years or more under the current system. The rule does not affect current cases and applies only to people who arrive after it goes into effect.
Although this new system could be a huge benefit to individuals with slam-dunk asylum cases, the rapid timelines envisioned in the regulation are likely to make the system much harder to navigate successfully for everyone else.
An Accelerated Timeline
For the last 25 years, most asylum seekers who arrived at the border were placed into “expedited removal” and had to navigate a two-step process for seeking asylum. First, an asylum officer would determine if they had a “credible fear” of persecution. If they passed that credible fear interview, they would be sent to immigration court. In immigration court, they had to submit a formal application for asylum in English, which would then be heard by an immigration judge. Asylum seekers who didn’t go through the expedited removal process were generally released at the border and put directly into court, skipping the credible fear stage.
Under the new rule, individuals in expedited removal who pass a credible fear interview would no longer go directly to an immigration judge. Instead, they would first get an “Asylum Merits interview” between 21-45 days after the credible fear interview. At the conclusion of this interview, an asylum officer with U.S. Citizenship and Immigration Services would be authorized to grant the person asylum immediately if the person had demonstrated that they deserved it.
However, if the asylum officer determined that the person didn’t qualify for asylum, they would be required to refer the person to an immigration judge to review the denial. At this stage, the regulation establishes a rapid timeframe—roughly 90 days from start to finish.
Within 30 days of being referred to immigration court, the person would have their first hearing in front of a judge. 30 days later, they would get a single status conference where they would submit any new evidence in their case. One month after that (just 90 days after receiving the decision from their “Asylum Merits interview”), they would have a full trial on their asylum application in front of the judge. Although asylum seekers would be able to request an additional 30 days to prepare for their case, the rule makes it difficult to obtain any more extra time after that.
Difficulties Obtaining Legal Counsel
This schedule would be significantly faster than the already-rapid timeframes for an immigration court case faced by people held in U.S. Immigration and Customs Enforcement (ICE) detention. As a result, it would make obtaining a lawyer to assist with the asylum process extremely difficult.
Asylum cases often take weeks or months to prepare for and require extensive legal work. Lawyers seek out witnesses, gather evidence, write legal briefs, and prepare their clients for a hearing which will often determine whether they may live or die. Few lawyers can represent more than a handful of clients on schedules this rapid. And under these timeframes, the longer it takes to obtain a lawyer, the less likely a person could find a lawyer willing to jump in at the last minute.
As a result, the Biden administration’s new asylum process would likely have a devastating effect on the ability of most asylum seekers to obtain a lawyer. And since studies have consistently shown that having a lawyer is one of the most important factors determining whether a person will win their case, the regulation would almost certainly act as a mill of denials.
Thankfully, the Biden administration will accept comments on the new regulation over the next 60 days and has said it is willing to make changes if necessary.
If the administration keeps to the current timeframes as laid out in the rule, it’s almost certain that the rule will do more harm than good. But if the administration is responsive to concerns and finds ways to avoid rushing people through the process without time to find a lawyer, the rule could be improved significantly.
As the rule is rolled out across the country over the course of 2022, it will transform the asylum process. But until the concerns are addressed, whether that transformation is positive or negative remains to be seen.