New asylum adjudication policy set to go into effect after failed Senate vote—05-27-22

Immigration news, in context

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This week’s edition:

• In The Big Picture, we dig into a new expedited asylum policy at the border, which Republicans tried to thwart.

• In Under the Radar, we discuss CBP’s presence at the Uvalde shooting.

The Big Picture

The news: After first coming to public attention almost exactly a year ago, the finalized federal rule giving initial jurisdiction to decide on defensive asylum claims to the U.S. Citizenship and Immigration Services is finally going into effect next Tuesday. Senate Republicans attempted to use a somewhat obscure provision under the Congressional Review Act to block the rule, but the vote fell short, and it was doubtful it would have made much headway in the House anyway.

What’s happening?

As we noted in our initial look at this potential policy, the incoming change can be best summarized as making USCIS — the entity that currently processes visa, permanent residency, citizenship, and affirmative asylum applications internally — the initial adjudicator for defensive asylum applications, which would basically encompass all of the asylum applications made at the border.

To fully transmit what this means, we have to go through some definitions. Defensive asylum applications are used as a defense against deportation in an ongoing removal proceeding, as opposed to affirmative applications, which are  submitted by someone who already has status or the government isn’t otherwise attempting to remove. That applies to every adult or family who arrives at the border without entry documentation, for whom the default would be an expedited removal proceeding in the absence of an asylum claim. If the person does make an asylum claim, USCIS will evaluate them for so-called credible fear, but if they pass this then the case gets kicked over to the backlogged immigration courts (provided that they aren’t immediately expelled under Title 42, which is another matter that totally circumvents the normal processes).

Immigration courts, while technically really just executive government departments with no formal independence, operate much like criminal courtrooms in that a judge presides over proceedings with two adversarial parties: the respondent, as the person at risk of deportation is known, versus the government, represented by specialized ICE attorneys who act as prosecutors. Sometimes, the respondent has legal representation, often they don’t. Unlike in criminal proceedings, the government is not required to furnish an attorney for those who can’t find or afford one. Asylum proceedings in these courts can take years, particularly as the immigration court backlog inches towards 2 million pending cases.

Affirmative applicants have a much different process. Their whole claim is initially evaluated by USCIS personnel who have the ability to actually grant the claim without needing to involve the courts. The main thrust of the interim final rule, titled “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers,” is to port this process to defensive claims as well (and, as the title suggests, apply it not only to asylum but to the lesser but sometimes necessary humanitarian protections under withholding and the Convention Against Torture). Asylum seekers arriving at the border would get to have their cases initially evaluated by USCIS in a non-adversarial setting, and the agency could quickly grant them asylum — or deny it. In the event of a denial, asylum seekers would be able to appeal to the immigration courts, which would then take over.

The administration is able to do this because the law itself grants it pretty wide latitude to decide how it will process asylum requests. As the government notes, 8 USC 1225 § (b)(1)(B)(ii) states that, for people arriving in the U.S. who have not been admitted or paroled, and for whom an asylum officer determines there is credible fear, “the alien shall be detained for further consideration of the application for asylum.” It does not require that this consideration be through the immigration courts specifically. Additionally, 1158 (b)(1)(A) establishes that the government “may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General,” giving the departments the ability to regulate how their asylum-granting processes will work.

The rule has gone through notice-and-comment and been tweaked somewhat from original drafts, but the basic final gist is that people arrested at the border will be put into expedited removal proceedings, at which point they can request asylum. They have their credible fear interview, and if it is positive, they are scheduled for a so-called asylum merits interview (AMI), which will happen between 21 and 45 days after the credible fear interview. During the intervening period, applicants can be released and put into the alternatives to detention program, i.e. they will be monitored technologically. They can submit additional evidence, and then USCIS can grant them asylum if they are found eligible.

If they aren’t eligible, then they’re referred to the immigration courts for the standard removal process, with one catch: they are put into “streamlined” proceedings, on a dedicated docket of the sort that’s been known to cause some due process issues. On this docket, immigration judges will attempt to have a master (initial) hearing at most 35 days after the charging document is issued, with the merits hearing — at which all evidence must be presented and the case made as to why the respondent qualifies for asylum — no later than 65 days after that. If the respondents aren’t successful, they would be ordered removed. Notably, the rule does not apply to unaccompanied children, who can’t be placed in expedited removal at all, though they are supposed to have other built-in protections.

Yesterday, Wisconsin GOP Senator Ron Johnson tried to get the Senate to pass a resolution yesterday that would have blocked this policy from going into effect, leaning on the little-used Congressional Review Act, which broadly lets Congress act to block federal regulations that would ordinarily be left up to the executive. The vote failed 46-48, with West Virginia Democrat Joe Manchin joining the Republicans in voting in favor. All other Democrats voted against it, and a few members were absent. Senate Minority Leader Mitch McConnell also broke ranks to vote no. He did this to preserve a tool that would allow him to bring to a vote again, which he is currently attempting, though it’s unlikely to end with a different outcome.

Some Democrats who voted in favor of blocking the measure did so because they thought it might help expedite deportations as well as approvals. Arizona Sen. Mark Kelly, for example, told Roll Call that “if you want to expedite, you know, removal of asylum-seekers, you have folks there at the border to do that… That’s consistent with the ‘no’ vote.” It’s also the case that a vote in favor could have wider-ranging repercussions for border policy, as a part of the act itself, codified in 5 USC § 801(b)(2), notes that a rule blocked by Congress “may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued,” unless specifically authorized. That could ultimately block all manner of attempts to accelerate asylum processing, even ones that Republicans might like. In any case, the House would be very unlikely to follow suit.

How we got here

The proposed rule was first published last August, after which both the rule and the White House’s communication plan around it were leaked to BuzzFeed News’s Hamed Aleaziz. The communication plan emphasized how the new asylum regulation would help cut the massive backlog of outstanding immigration court cases, which continues to climb. (In August, when the draft rule was published, there were 1.3 million pending immigration cases, according to the TRAC project at Syracuse University; as of this April, there are more than 1.7 million.)

This is not the first attempt to reduce the pending case backlog by quickly adjudicating new cases. The Obama administration implemented so-called “rocket dockets” for both migrant families and unaccompanied children in 2014. Ultimately, more than 38,000 cases were assigned to this expedited docket over a two-year period, most of which ended in deportation. A TRAC report found that 93 percent of families without attorneys didn’t file applications for asylum or other forms of relief, which suggests that the government did not make them fully aware of their right to do so. Denial rates were still high among immigrants with legal representation, with only 21 percent being granted any kind of relief. 

The Trump administration also introduced an expedited docket, which applied to 10 cities and adjudicated almost 17,000 families’ cases in less than a year. Eighty percent of those cases were decided in absentia, meaning the respondents weren’t present at their hearing. Absentia decisions have become a hallmark of expedited dockets, oftentimes because people aren’t given adequate time to find attorneys and may not understand how the immigration court system works.

Biden also introduced a dedicated docket for migrant families which has had predictably similar results. A recent report by the UCLA School of Law found that 99 percent of completed cases in Los Angeles have resulted in removal orders so far, and that 72 percent of those were decided in absentia. The docket is in place in 11 cities, including New York, Boston, and El Paso. 

The new asylum policy is a bit different. As noted above, unlike earlier efforts to expedite asylum hearings, the new policy won’t happen in an adversarial setting. The initial decision will not be made by an immigration judge, but rather by a USCIS asylum officer. This is a noteworthy change in and of itself. Approval rates vary widely between courts and even between judges, making the venue in which an asylum seeker files for relief a significant determinant in the outcome of their case. There are immigration judges who have not granted a single person asylum in their years on the bench.

Republican opponents of the new policy have claimed that the asylum rule will encourage more people to come to the border. This suggests a migration ecosystem in which migrants in Mexico and Central America are closely following policy developments in Washington, DC and making calculated decisions on when to travel to the United States. Asylum seekers flocked to the border under Trump despite his anti-immigrant policies; they have continued to do so under Biden not because they think the border is now “open” but because of conditions that drive them out of their countries of origin. That said, some migrants who have spent months or even years at the border awaiting the end of Title 42 did, to some extent, expect the Biden administration to be more welcoming, because it said it would be. By sending contradictory messages on asylum and migration, the Biden administration has contributed to confusion and disarray at the border.

What’s next?

The rule is going into effect May 31st, which is this Tuesday, but is going to be phased in, with limited application to start. According to USCIS, it will initially include “a few hundred noncitizens each month,” a small portion of the thousands of people who are encountered at the border seeking asylum. In that regard, it will start off as a sort of pilot program. Only migrants who indicate an intent to reside in the cities of Boston, Los Angeles, Miami, New York, Newark, or San Francisco will be eligible, and they will initially be placed in one of two detention facilities in Texas before being referred for asylum merits interviews. It’s not clear how aggressively or quickly the program would expand. We don’t have a clear notion or timeline for when or if the administration plans to have this in place across the border.

As we touched on above, there are crucial open questions about just how all this will work. We expect that grant rates will be higher than they currently are under the standard immigration court process, as it’s inherently more straightforward to prevail in a non-adversarial setting where you don’t have to be parrying the legal arguments of a trained prosecutor attempting to have you deported. However, the accelerated timelines and the fact that migrants will have their merits interviews shortly after their credible fear interviews and while potentially still in detention means that many won’t have representation, and even in a friendlier setting the standards for asylum are complex and unintuitive, which could trip them up.

Of course, in that case they would still be referred to immigration court proceedings, but the accelerated dockets present their own due process concerns. That recent report found that the same type of accelerated docket that we’d covered before is causing more asylum seekers to be deported without being able to consult with a lawyer or fully build their case. If their AMIs are denied, they may not even be fully aware that they have the option to additionally seek relief in court versus just accepting the results.

All of this also intersects with the existing restrictions at the border. The Trump-appointed judge who had initially blocked the administration from terminating the Title 42 order has extended his injunction indefinitely while the case continues to be litigated. While the administration is appealing, it does not appear to be seeking an emergency stay that could let it move ahead immediately. That makes it likely that Title 42 will remain in place for at least several more months, along with the reinstate Remain in Mexico program, which is mired in its own litigation. That means that those who will be included in this new asylum process will be only those who’ve made it through the existing gauntlet of restrictions. 

Under the Radar

Border Patrol agents responded to Uvalde shooting

The mass shooting at an elementary school in Uvalde, Texas is on everyone’s mind this week, and with good reason. The shooting left at least 21 people dead and 17 more injured; all but two of those who died were children.

Shortly after the shooting took place, reports emerged that Border Patrol agents had arrived on the scene. There was some initial concern that both Border Patrol and Immigration and Customs Enforcement were there to arrest grieving families in the largely Mexican-American community, prompting DHS to release a statement clarifying that, “to the fullest extent possible,” its agencies “do not conduct immigration enforcement activities in protected areas.” (Though, as several immigration reporters noted, ICE has, in fact, arrested people at sensitive locations and does not track how many enforcement operations it has done in these areas.)

Though the timeline of the shooting is still being clarified—thanks to reporters who have raised questions about and poked holes in the Uvalde police department’s initial narrative, which has been repeatedly disproven already—a few things are clear. As Texas Monthly’s Jack Herrera reported, there were some Border Patrol agents at the scene, some of whom rushed into the school because their children were in the building. The CBP agents who responded to the shooting in an official capacity were members of BORTAC, the Border Patrol Tactical Unit, who are trained to fight cartels. 

Recent reporting by the New York Times also revealed that local police prevented both Border Patrol and ICE agents from entering the school. The agents arrived at the school sometime between 12:00 and 12:10 pm but did not enter the classroom where the shooter was until just before 1 pm, according to the Times.