Processes For Ascertaining Asylum And Credible Fear In The Interim Final Rule
23 July 2022
Undeniably, one issue that still plagues the American society and government is the issue of immigration. Having nearly if not completely torn the country into factions, rules and policies are continuously developed to curb or fix the issue. One such rule is the Interim Final Rule dedicated to the changing of the system of how may participate in asylum process in the United States.
This article explains the new process for asylum at the border that will be used for some (not all) asylum seekers.
The Interim Final Rule known as the “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers” contains the processes for testing one’s credible fear, ascertaining asylum eligibility, validating protection from torture claims, and processes for withholding of removal. This rule was set in motion on May 31st, 2022. It altered the manner for processing asylum cases by the Department of Homeland Security, especially for individuals in expedited removal who are claiming asylum at the border. In effect, the Interim Final Rule allows for a considerably shorter time for processing cases as opposed to what it used to be. It also allows for some of the processing that used to take place at the southern border by the courts to be moved to interior cities. Therefore, immigration lawyers across the country may want to get familiar with this new rule to be able to assist their clients.
According to the Interim Final Rule, asylum seekers who pass the test for credible fear will have their interview or test count as an application for asylum to the United States Citizenship and Immigration Services (USCIS). Previously, only when a person would submit form I 589, formal application for asylum, they were considered to have filed their asylum claim with the US government. As such, many unsuspected asylum seekers lost their cases due to misunderstanding of the process. According to the new process, following the initial credible fear interview, asylum seekers will have an "Asylum Merits Interview" scheduled for them within 21 to 45 days. The asylum officer they are to meet with will be situated in one of the six cities designated by the USCIS and not at the border. They include Boston, Miami, New York, Newark, San Francisco, and Los Angeles. If an asylum claim is denied, the asylum seeker will be referred to an immigration court in that same city as designated by the USCIS, where they sought asylum. The immigration court is expected to resolve the case within two to four months, which may present inadequate amount of time for a preparation for an asylum hearing.
The Interim Final Rule is presently open to intended asylum seekers who meet the following criteria:
- Ones who arrived after May 31, 2022.
- Ones who are detained in either of the two detention facilities in Texas (Pearsall or Houston).
- Ones who notify the Department of Homeland Security that they are interested in residing in one of the USCIS designated cities of Boston, Miami, New York, Newark, San Francisco, or Los Angeles; and
- Ones who are single adults.
According to DHS, the first locations for placement under this process will be two detention facilities in Texas. Asylum officers will conduct credible fear interviews telephonically in these two locations, including for individuals who may be subsequently referred to USCIS for an AMI following a positive credible fear determination.
Individuals who are released from detention during this time period will be placed in alternatives to detention (ATD) as necessary to ensure compliance with their reporting, interview, and hearing obligations.
Individuals will have until seven days (if submitting in person) or 10 days (if submitting by mail) before the AMI to amend or correct the record resulting from the credible fear interview and submit additional evidence. If an individual fails to appear at the AMI, appropriate enforcement action will be taken.
If USCIS finds the individual eligible for asylum, the individual will receive a grant letter informing them of applicable benefits and related procedures.
The process also leaves no room for filing for a different relief other than asylum, apart from withholding of removal or CAT:
In instances where USCIS does not grant asylum, the asylum officer will include in the decision a determination whether the principal applicant demonstrated eligibility for withholding or deferral of removal based solely on the evidence presented before USCIS. Once the individual is in removal proceedings, if the IJ also does not grant asylum and issues a final removal order, the IJ may confirm the USCIS asylum officer’s determination that the individual is eligible for withholding or deferral of removal. If the asylum officer did not find the individual eligible for withholding or deferral of removal, the IJ will further review those claims and make an independent assessment whether the applicant is eligible. If the IJ concludes that the individual is ineligible for relief or protection, they will issue a removal order, and the individual will be expeditiously removed from the United States.
Presently, there are two federal court cases against the Biden administration concerning the Interim Final Rule. These cases are led by Arizona and Texas. It is no longer news that the country has been divided into factions following the issue of immigration. With the Republicans adamant about opposing the legalization of illegal immigrants, and the Democrats doing all in their power to push the issue forward, there seems to be no hope for a bipartisan agreement on the issue of immigration.
More recently, Greg Abbott, the Republican Governor of Texas ordered the arrest of undocumented residents by state officials and National Guardsmen. This is in blatant opposition to the Biden administration and its stand on immigration. Governor Abbott mentioned his concern for the safety of American citizens residing close to the border and how the incessant trooping of illegal immigrants through the border raises safety concerns.
While both parties hold valid fear and reasons to oppose the other's stand and reinstate theirs, we cannot help but hope that both arms will reach a consensus on the issue and put a stop to the obvious dispute.
Recall that Republican Sen. Tillis expelled all hopes in a statement opposing any bipartisan agreement on the issue as relayed by Democrat Senator Durbin. Although Durbin hoped for a "Uvalde Moment" due to recent migrant deaths in Texas, the opposition was clear on their stand not to support illegal immigration favorable bills put forward by Democrats. Tillis also mentioned the unresolved border crises at the southern border.
Notwithstanding, several bodies including the Human Rights Watch have commented on the limiting measures on the Interim Final Rule. Such bodies have advised that it's either the errors be corrected or the rule be withdrawn. This is because such limitations on asylum seekers will cause them to be removed and returned to the dangers they are fleeing. The rule is also perceived to violate certain international laws guiding immigration and asylum seekers. The new process prevents asylum seekers from seeking alternatives to removal if their claim is denied.
If you need help with an asylum claim, call us at 917 885 2261.