The Biden administration plans to speed up how migrants who show up at the southern border can seek asylum.
The plan, outlined in a statement from the White House this week, is to replace immigration judges with asylum officers to decide asylum claims. However, it does not deter migrants from traveling to and illegally crossing the border, as former President Donald Trump had sought to do.
Such a move would be a step toward fulfilling President Joe Biden’s campaign pledge to overhaul the U.S. immigration system, moving away from Trump administration policies meant to limit migration and toward measures to bring migrants in more quickly.
Under the White House’s blueprint to reform the asylum process, asylum officers within the Department of Homeland Security will not only continue the preliminary screenings, known as credible fear screenings, but also the officers will make the final decision to grant asylum or not.
Credible fear is a legal term that determines whether the migrant has been or may be a victim of persecution in their home country, according to the Department of Homeland Security. Under the status quo, asylum seekers are released into the United States after they prove credible fear. Once in the U.S., they wait several years before having their asylum claim decided by a judge.
Muzaffar Chishti, senior fellow for the international Migration Policy Institute, said the change would mean migrants would still undergo credible fear interviews with asylum officers while at the border. If they pass, they would see an asylum officer for the final decision not long after, rather than waiting years to appear before a judge.
“After you pass the credible fear, instead of going to an immigration judge for a hearing, you will actually go to an immigration asylum officer for a hearing. That won’t be at the border. That’ll be in the interior of the country, but you will get a reasonably quick hearing with an asylum officer,” Chishti said.
Asylum officers are familiar with the conditions in countries where migrants have fled to a greater extent than immigration judges. Because asylum is an individual process, officers require detailed information about how a specific individual is being persecuted or at risk of death if returned home. For example, officers are more familiar than judges with the widespread violence in El Salvador, where the MS-13 gang is heavily present.
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Tens of thousands of people have arrived at the southern border with a family member every month since March. Unable to return most families to Mexico or detain them for more than 20 days due to legal constraints, the Border Patrol has been forced to release most families into the U.S.
Many families will claim asylum and have their cases added to the 1.3 million case list of all pending immigration matters. The immigration courts hear asylum claims and a slew of other legal matters, including deportation requests.
Approximately 500 immigration judges nationwide must decide all cases, which is why allowing asylum officers to decide the hundreds of thousands of asylum cases could alleviate the backlog.
The new system will get decisions to asylum seekers years faster than under the present system. Families released into the U.S. whose asylum claims are denied would be removed.
However, the conservative Heritage Foundation think tank’s senior research fellow for homeland security, Lora Ries, said asylum officers may lean toward approving asylum claims more often than not because they typically approve credible fear claims. The effect would be a high number of people being admitted to the U.S.
“When you have the asylum adjudicators who have done credible fear — and in the vast majority, grant credible fear — if you have that same person turn around [and decide claims], is the asylum rate going to increase?” Ries asked.
Biden has the authority to overhaul the system. The problem is that reforms have not been rolled out in six months, frustrating those in Washington who support the president’s plan.
“We’ve seen no announcements, no Federal Register notice, no outward signs of activity that there’s something changing soon. We don’t even know if they’re planning on issuing a regulation for that,” said Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center. “I’m kind of frustrated that they haven’t figured out that they need to have a plan. And maybe they do, maybe they have a plan internally, and they just aren’t communicating that publicly anywhere. But at this point, you would think that, too, at least politically, it would help them to put some kind of plan out there.”
Chishti said the situation at the border, a “crisis where we do not see any end in the future,” is to blame for delaying the Biden administration from rolling out the new asylum system.
“They have been completely, I think, handicapped by what’s happening at the border,” Chishti said. “Both on substance and on politics, the unending flow — rise at the border has compromised the administration.”
Biden’s work on immigration is one of the president’s lowest-polling issues, Chishti said, likely making the White House fearful about introducing big changes.
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“Whatever vision they have for how they like to do things is going to take a lot longer to implement, and they have to deal with what’s happening right now,” Brown said. “The only response they can give right now is either a strong, ‘Don’t come,’ message, which, as I said, there’s really no evidence it’s ever been effective for anybody. And the advocacy community is like, ‘Why are you telling asylum seekers not to come? Asylum’s allowed.’”
