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Contact NIJC Communications Director Tara Tidwell Cullen at (312) 833-2967 or by email.

The Biden administration released a new proposed rule yesterday adding more restrictions to already compromised asylum systems at the U.S.-Mexico border. The changes would dramatically limit access to asylum — a life-saving protection that for decades has been available for people fleeing persecution or torture. Concurrently, the Biden administration announced new internal guidance and released a new memo for asylum and immigration adjudicators that further vilifies migrants and asylum seekers and authorizes broader use of secret evidence.

Mary Meg McCarthy, executive director of the National Immigrant Justice Center (NIJC), responded with the following statement:

“Tomorrow will mark one year since President Biden launched his own version of the prior administration’s asylum ban, a blatantly illegal and inhumane policy that has caused unimaginable harm. This proposed rule is another installment in a series of harmful policies that have placed access to asylum increasingly out of reach for people in need of protection. The rule gives government officials the power to deport people seeking asylum at their first preliminary screening by applying bars to asylum eligibility based on allegations or suspicions that they are dangerous. These bars are legally complex and are often applied erroneously or prejudicially, resulting in the return of individuals and families to places where their lives are in danger.

“People need time and legal counsel to defend themselves against baseless allegations or mistaken applications of the law. This rule doesn’t allow that time or due process — and the consequence will be that those in need of protection are sent directly back to harm in even greater numbers than we are already seeing. The government suggests this is a small change that won’t affect many people, but it is a dramatic erosion of access to protection that will punish the most vulnerable asylum seekers. Government officials are poised to apply these changes on top of systemic obstruction of attorney access in border jails and an asylum ban that the administration put in place last year which already denies access to asylum for a host of additional reasons.

“This administration has capitulated to fear-mongering immigration extremists whose dehumanizing measures obscure the fact that people in need of protection are eager to rebuild their lives and contribute to the communities who offer them refuge. Among the hundreds of asylum seekers who NIJC staff have screened following their journey across the border, we have found that almost all have credible, viable asylum claims. Contrary to the narrative now being promoted by extremists, the Biden administration, and many media outlets, people seeking refuge at our border have a right to seek asylum under current U.S. law. Obstructing that access is a calculated political move entirely untethered from our legal and moral human rights obligations.”

About Biden’s proposed changes and new guidance

1. What is the new rule proposed by the Biden administration?

The Biden administration’s proposed rule would allow asylum adjudicators to determine during a threshold asylum screening interview (known as a Credible Fear Interview or Reasonable Fear Interview) that a person arriving at a U.S. border to seek safety is ineligible for asylum based on one of five “bars” to asylum eligibility. Because this interview is part of an expedited asylum screening process, this determination will subject the individual to swift deportation — in most cases without ever seeing an immigration judge or having the opportunity to argue against the bar’s application, much less secure evidence to refute baseless charges. Under a different Biden administration policy, these interviews are scheduled within 24 hours of arrival.

This process would be a major change from current practice, which requires adjudicators to consider bars to asylum eligibility at a full hearing on  a person’s asylum application, after they have had time to prepare their case and find a lawyer. The eligibility bars at issue in this rule apply to people who are alleged to have persecuted others, to have committed a “particularly serious crime” as defined in the asylum statute (a definition that can encompass offenses as minor as petty theft), to pose a national security risk, to have been involved in violent organizations, and/or to have committed a serious non-political offense outside the United States. Determining whether a person is subject to any of these bars involves complex, dense legal analysis; many of these terms have been subject to extensive litigation (all the way up to the Supreme Court). Expecting asylum seekers to be prepared to navigate this complex case law by proactively presenting evidence during their initial screenings — within hours or days of a traumatic journey, and while unrepresented and detained — makes a mockery of basic principles of fairness.


2. Is Biden the first to propose eligibility bars at the fear-screening stage?

No. In 2020, the Trump administration proposed applying mandatory bars to asylum to the credible fear stage as part of a much larger rule restricting asylum access; that effort was blocked by a federal court.

In 2022, the Biden administration explicitly reversed course in its own rulemaking, finding that requiring asylum officers to adjudicate bars at the credible fair stage would be inefficient because it would demand a “fact-intensive inquiry requiring complex legal analysis that would be more appropriate in a full adjudication before an asylum officer or in [immigration court] proceedings with the availability of judicial review rather than in credible fear screenings.” The administration also noted that “due process and fairness considerations counsel against applying mandatory bars during the credible fear screening process.”

Two years later, those due process concerns have only increased because of other policies from the administration, yet the government has completely reversed its position, deciding to toss due process and fairness concerns out the window.


3. Why is it harmful to apply bars to asylum at the credible fear phase?

Applying eligibility bars to asylum seekers at the credible fear stage dramatically increases the risk of erroneous deportations — in other words, it means people with urgent protection needs will be deported back to harm.

For exactly these reasons, the United Nations Refugee Agency explicitly recommends that bars to asylum eligibility should be made at the final merits stage of an asylum case, not in expedited processing: “Given the grave consequences of exclusion, it is essential that rigorous procedural safeguards are built into the exclusion determination procedure. Exclusion decisions should in principle be dealt with in the context of the regular refugee status determination procedure and not in either admissibility or accelerated procedures, so that a full factual and legal assessment of the case can be made.”

The bars to asylum eligibility at issue in this rule are sweeping and subjective in their application. It is almost certain that, without safeguards, bars will be applied in a prejudicial manner, particularly impacting Black, Brown and Indigenous migrants.

NIJC client Claudia, for example, fled her home country with her three-year-old son after surviving physical and sexual violence at the hands of gang members. When she entered the United States in 2019, immigration officials separated her from her child on the basis of allegations of a criminal history shared by the government of her country of origin. Claudia was finally released from government custody and reunited with her child only after her NIJC attorneys obtained proof obtained by a lawyer in her home country that the charges against her were bogus, and she was a victim of crime, not a perpetrator. Had this new rule been in place when Claudia arrived, she would have been swiftly deported back to harm, without any opportunity to obtain the evidence she needed to ensure hers and her child’s safety here in the United States.

Furthermore, the rule will be particularly dangerous for people who are fleeing persecution that includes actions taken against them by state security forces, such as an arrest or issuance of a warrant. In these cases, there will be a very high risk of erroneous deportation should an asylum officer apply an exclusionary bar on the basis of this arrest or warrant, triggering deportation before the individual can provide evidence in their own defense.

NIJC client Camilo, for example, fled to the United States from El Salvador after police repeatedly threatened to harm him if he refused to falsely testify against gang members. He was detained upon arrival at the U.S. border, and during his time in detention learned that the Salvadoran police had followed through on their threats and levied unfounded charges against him. Those allegations were part of the persecution Camilo fled, but became the basis for which he was subject to prolonged detention while he pursued asylum in the United States. A thorough investigation and inquiry by Camilo’s legal team produced the evidence necessary to prove his innocence of the charges brought against him. Had this new rule been in place when Camilo arrived at the border, he almost certainly would have been swiftly deported because of these baseless charges, without any opportunity to contest his removal back to harm.


4. Will this new rule make asylum adjudications at the border quicker?

No. The administration claims this rule will further efficiency goals at the border, but in fact the opposite is true. The complex factual and legal inquiries necessary to determine the application of the eligibility bars at issue in this rule will bog down the credible fear process, creating new administrative burdens instead of alleviating existing ones. When the Trump administration proposed that these bars be adjudicated at the credible fear stage in 2020, the union representing asylum officers noted in their comment on the rule that adjudicating bars to eligibility are “considerations … properly left to an immigration judge to explore in a full merits hearing,” noting that requiring asylum officers to consider bars to relief at the credible fear stage “ensure[s] that the expedited removal process will be further complicated and delayed.” In NIJC’s experience, it is already common for credible fear interviews to take up to five hours. Adding the complex inquiry into possible bars will drain more time and resources, rather than increase efficiency.


5. Besides the proposed rule, what other changes has the Biden administration made?

New guidance for asylum adjudicators allowing swift deportation based on complex determinations regarding the possibility of relocation within a refugee’s country of origin: The administration also announced that it has published new guidance for asylum adjudicators, adding yet another layer of inquiry at the credible fear stage – the determination of whether a person could have reasonably relocated within their country of origin instead of fleeing. The text and details of this guidance are not yet public, but we expect this change will additionally short-circuit due process protections by forcing people seeking asylum to defend against the application of a legally complex rule within days or weeks of fleeing.

New memo regarding the use of classified documents in asylum proceedings: The administration has simultaneously published a new memo changing long-standing policy regarding the use of classified information in immigration proceedings. Previously, immigration adjudicators could only rely on classified information as a last resort; the new guidance removes this safeguard and allows the government to wield classified information against people in immigration proceedings, including ex parte proceedings where the person seeking asylum is not present. This memo adds even more secrecy and due process challenges for people seeking to rebut baseless or complex allegations following them from their country of origin. Worse, we fear that in many cases the person seeking asylum will not even be informed such information is being used against them.

Together with the proposed rule, these changes are not occurring in a vacuum, but in the context of the already restrictionist systems in place at the U.S.-Mexico border: The asylum ban issued by the Biden administration one year ago continues to leave people’s access to asylum at the whim of their access to a phone app, leaving people stranded in Mexico where many experience severe harm, including rape and torture, waiting for the opportunity to seek safety in the United States. Others are able to enter, but undergo fast-tracked expedited processing that imposes other unlawful limits on the ability to seek asylum, while in punishing conditions in Customs and Border Protection or Immigration and Customs Enforcement custody. This new rule means that the asylum seekers who manage to access the asylum system in the first place and request a threshold asylum screening would face an additional steep obstacle in the form of this new rule.


As the United States and the entire global community respond to a historic forced displacement of people, NIJC continues to call upon the administration to enact policies that respond with compassion, respect, and a commitment to abide by international and domestic law.