Biden Suspends 2022 Rule Expanding Asylum Officers’ Powers
FAIR Take | April 2023
Last week, the Biden Administration confirmed it would suspend a 2022 regulation that grants asylum officers broad authority over asylum claims. The regulation marked one of the most significant redistribution of immigration cases in years. It also represented one of the Biden Administration’s most consequential changes in immigration policy that did not simply stem from reversing his predecessor’s actions.
In substance, the 2022 regulation allowed USCIS asylum officers to grant or deny the asylum claims of aliens illegally crossing the southern border. Up until then, asylum officers performed initial asylum screenings of illegal border crossers, called credible fear interviews, and decisions on the merits of whether to grant or deny asylum were heard exclusively by immigration judges. The administration, like organizations that previously endorsed the idea, argued the plan would streamline and speed up the asylum process for illegal border crossers and take pressure off of overburdened immigration judges.
Critics pointed out, however, that the new rule was unlikely help increase efficiency. First, they pointed out, the Biden Administration was merely shifting the bureaucracy from one agency to another. At the time, USCIS asylum officers were already adjudicating a portion of asylum cases, roughly a third to a half depending on how calculated, including cases of aliens who are legally in the U.S. and those of unaccompanied alien children (UACs). And, like the immigration courts, USCIS had a significant backlog with its own cases – over 350,000. Thus, to catch up with its own backlog and in addition, meet the full caseload, USCIS would need to launch a massive hiring spree and then train a whole new cadre of asylum officers. That alone would easily take years.
Even if USCIS could hire and train sufficient staff to immediately take on the border asylum cases, it would not necessarily lead to better outcomes due to the asylum process at USCIS. By definition, USCIS asylum proceedings are non-adversarial, meaning that the asylum officer serves as a neutral decision-maker and there is no other official there to represent the government’s interests. The asylum officer’s main task is to elicit testimony and the bulk of the evidence placed into the record is presented by the alien himself (or his counsel).
In contrast, in immigration court, an ICE attorney represents the government’s interests, introduces evidence, and cross-examines the alien to probe the veracity of his/her claims. Moving these cases under the umbrella of USCIS, where the record is largely created by the alien, could therefore lead to the rubber-stamping of asylum applications and increase the potential for fraud.
The Biden Administration’s decision to suspend the rule comes as DHS is preparing for a surge of asylum-seekers illegally crossing the border after Title 42 ends next month. While no official reason has publicly been offered, it may well be to assign more asylum officers to conduct credible fear interviews—the first step in the asylum process. And, according to the Los Angeles Times, the decision to suspend the rule only pauses a policy that never was fully launched because DHS limited the rollout to single adult aliens who were bound for Los Angeles, San Francisco, Boston, New York, Miami, Chicago or Newark, N.J. A DHS spokeswoman emphasized that the pause is temporary and that previously scheduled interviews still will happen.