DHS Changes Asylum Screening Process And Makes It Harder To Qualify For Asylum
On December 18, 2024, the Department of Homeland Security (DHS) published a final rule titled "Application of Certain Mandatory Bars in Fear Screenings," set to take effect on January 17, 2025.
Summary of the Final Rule
This rule authorizes asylum officers to assess the applicability of specific mandatory bars to asylum and statutory withholding of removal during credible fear and reasonable fear screenings. Previously, such determinations were typically reserved for immigration judges during full hearings. The mandatory bars in question include factors such as persecution of others, conviction of a particularly serious crime, commission of a serious nonpolitical crime outside the United States, and national security concerns.
Implications of the Rule
The American Immigration Lawyers Association (AILA) has expressed concerns regarding this rule. Ben Johnson, AILA's Executive Director, stated that the rule could lead to complex legal determinations being made during initial screenings, potentially without adequate access to legal counsel for asylum seekers. He emphasized that the complexity of these mandatory bars necessitates thorough consideration, which may be challenging in expedited screening contexts.
Key Considerations for Asylum Seekers
- Access to Legal Representation: Given the complexities introduced by this rule, it is crucial for individuals undergoing fear screenings to seek legal counsel. Legal representation can help navigate the nuances of mandatory bars and advocate effectively during the screening process.
- Understanding Mandatory Bars: Asylum seekers should be aware of the specific grounds that could render them ineligible for asylum or withholding of removal. These include involvement in persecution, serious criminal activity, and national security issues.
- Preparation for Screenings: With asylum officers now empowered to apply these bars during initial screenings, thorough preparation is essential. This includes gathering relevant documentation and being prepared to address any potential issues that may arise during the screening.
If an asylum officer determines that a mandatory bar applies to an applicant during a credible fear or reasonable fear screening under the DHS final rule, the following outcomes may occur:
Credible Fear Screenings (Asylum Applications)
Finding of No Credible Fear:
- If the asylum officer determines that the individual’s fear is barred by a mandatory bar (e.g., due to criminal history or national security concerns), the officer will issue a finding of no credible fear of persecution or torture.
- The individual may be subject to expedited removal without further review unless they request an immigration judge to review the asylum officer’s decision.
Review by an Immigration Judge:
- If the individual requests review, an immigration judge will evaluate the asylum officer’s decision. If the judge agrees with the officer, the individual will remain subject to removal. If the judge overturns the finding, the case can proceed to a full asylum hearing.
Reasonable Fear Screenings (Withholding of Removal or Protection Under CAT)
Finding of No Reasonable Fear:
- If the asylum officer finds that the individual does not have a reasonable fear of persecution or torture due to the application of a mandatory bar, the officer will issue a negative reasonable fear determination.
- The individual may then request review of the decision by an immigration judge.
Bar Applies but Fear is Found:
- If the officer finds that a bar applies but the individual still has a reasonable fear of persecution or torture, the individual may only proceed with a claim for deferral of removal under the Convention Against Torture (CAT).
- Deferral of removal is a more limited form of protection, offering relief from removal but without granting legal status or benefits like asylum or withholding of removal.
Deferral of Removal Under CAT
Deferral of removal is a temporary form of protection that prevents removal to a country where the individual is likely to face torture. However, it does not provide a path to lawful permanent residency or citizenship and is subject to review and termination.
Impact of Mandatory Bar Findings
- A finding that a mandatory bar applies is a significant determination that can limit the forms of relief available to the individual.
- It emphasizes the importance of having strong evidence and legal representation to contest the application of these bars, either before the asylum officer or during review by an immigration judge.
For more detailed information, refer to the official DHS publication: https://www.aila.org/aila-files/1BFC682E-82C1-416C-B376-5046C6D7842E/24121703.pdf?1734533702
Conclusion
The DHS's final rule represents a significant shift in the processing of asylum claims, placing greater responsibility on asylum officers during initial fear screenings. As this rule comes into effect, it underscores the importance of legal assistance for asylum seekers to ensure fair and thorough consideration of their claims.