New DHS Rule Skips Asylum Interviews, Sends Some Cases Straight to Courts

Washington — Federal asylum officers can deny interviews to asylum seekers and send them immediately to an immigration judge, speeding up deportation proceedings, under a rule U.S. Citizenship and Immigration Services published Tuesday.

The rule, which takes effect immediately, will allow USCIS, a Department of Homeland Security agency, to refer directly to immigration judges certain asylum cases — such as noncitizens who are not yet in deportation proceedings and are proactively seeking asylum — without first conducting an interview or including a referral letter to the judge regarding the applicant’s credibility.

The interim final rule will be in effect while the agency collects public comments and finalizes the rule’s language.

The move is a departure from how USCIS handles asylum cases. It could create weakened asylum claims before immigration judges, resulting in quick denials and orders of removal.

In order to apply for asylum, a noncitizen has to detail to an asylum officer a fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Asylum officers can use the new rule when USCIS determines that an applicant is barred from applying for asylum, barred from receiving asylum, does not merit a grant of asylum and is not eligible for asylum based on merits of their claim.

The rule also removes language that asylum seekers have the “right” to an interview.

USCIS estimates more than 444,000 pending asylum applicants could be affected by the rule. The agency also estimates that about 132,000 future applications for asylum could be impacted.

The rule could also affect hundreds of thousands of Haitians, who are set to lose their legal protections as the Trump administration plans to revoke Temporary Protected Status. When that status is gone, some could try to apply for asylum but not all would meet the specific standards for persecution laid out in asylum law.

Speeding Hearings

Trump officials argued the rule will help backlogs in immigration court.

“This rule will shorten the total time that it takes asylum officers and Immigration Judges to adjudicate asylum applications,” a DHS press release said.

USCIS Director Joseph Edlow said in a statement the rule would make sure asylum officers only consider “legitimate” applicants.

“For far too long the asylum system has been exploited for purposes of delay and work authorization, not legitimate claims of protection,” he said. “America’s asylum system exists to protect individuals who genuinely fear persecution and this rule will help ensure that resources are directed to the timely adjudication of those claims instead of to those seeking to use the system as a loophole.”

Officers Quicker Than Judges

But an immigration law expert said the policy may actually slow the asylum claim system.

The executive director of the American Immigration Lawyers Association, Ben Johnson, said in a statement that the rule will only worsen the 1.4-million-case backlog in immigration courts because judges can take longer to hear a case than an asylum officer.

“Not only will this rule throw sand into the gears of the immigration courts, it will stack the scales of justice against vulnerable people fleeing torture and persecution by putting them into adversarial court hearings and likely also into detention,” Johnson said.

“Instead of wasting court resources and depriving asylum seekers of due process, more cases should be directed to asylum officers who can do a thorough review of their case far more quickly than judges,” he continued.

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