A legislative grab bag of hate-based anti-asylum provisions, first introduced in Congress earlier this year in a House bill known as H.R. 2, has since made its way into negotiations over an unrelated supplemental funding package for foreign military aid. According to media reports, the White House is leading the charge on inserting anti-immigrant legislative changes in exchange for foreign military funding including: (1) dramatically raising the standard for people to pass the threshold interview that determines access to the U.S. asylum system; (2) barring most people from seeking asylum if they traveled through third countries en route to the United States; and (3) expanding “expedited removal,” which is currently in effect within 100 miles of the border and results in countless deportations of asylum seekers and other community members without any due process guardrails, to the entire United States territory.
These proposed permanent changes to U.S. immigration law would make it harder for people to access asylum protection at the U.S.-Mexico border, violate the U.S. government’s obligations under international refugee law, exacerbate the unprecedented humanitarian displacement currently playing out around the globe, and place long-time community members at constant risk of rapid deportation.
None of these proposals should ever be on the negotiation table, especially in funding packages which are not subject to congressional committee scrutiny. Members of Congress must oppose any policy or funding proposals that would trample fundamental human rights and make it harder for people to reach safety.
1. Proposed change: Heighten the legal standards for access to the asylum system
Likely result: The U.S. government would summarily return refugees to harm without a day in court, putting the United States in violation of its obligations under the Refugee Convention
When a person arrives at the U.S. border fleeing harm, the Department of Homeland Security (DHS) administers a screening interview known as a Credible Fear Interview (CFI) to determine if the person may proceed to present their asylum claim to an immigration judge. The CFI is often conducted while the person seeking asylum is in DHS detention, almost always without an attorney, and within days or weeks after surviving a treacherous journey fleeing harm. Failing this threshold interview results in speedy, summary deportation and a five-year bar from returning to the United States, with few exceptions for people who manage to appeal their case to an immigration judge. This sped-up screening process, depicted in flowchart form here, is known as Expedited Removal.
CFI interviews are preliminary screenings; if passage is too difficult, access to the entirety of the asylum system is blocked for those who need it. Congress intentionally established the credible fear standard as a low bar so that “there should be no danger that a [person] with a genuine asylum claim will be returned to persecution.” Given that people with strong claims to asylum regularly fail to meet the current CFI standard, imagine the harm that will befall refugees if the standard is heightened. One NIJC client described her experience under the current process:
“My first interview in the U.S was difficult… I was so psychologically harmed by the time I arrived at the Reynosa border that I couldn’t explain why I had left my country in the first place. I did not understand the laws of this country and did not realize that I had to establish credible fear for fleeing, so I told the immigration officials that I wanted to take care of my brother who was in a coma… Even after arriving at the border, the trauma and frustration continues. Imagine how difficult it would be to explain your trauma if you were detained, scared, and without a lawyer.” - Ronda Doe, NIJC client
NIJC’s legal team regularly encounters people like Ronda, including families with children. Our teams are able to elicit the information necessary to understand the basis for an asylum claim through detailed, trauma-informed interviews with clients. Because of the complexity of U.S. asylum law, the legal contours of an individual’s claim to asylum may not be immediately apparent to the person, or may require numerous interviews with an attorney who can conduct and explain legal research. Women fleeing domestic violence or gender-based violence, young people fleeing gang-related violence, LGBTQI+ and Indigenous people fleeing targeted harm are among those more likely to fail their CFI because of the complexity of the law underlying their claims.
Heightening the credible fear standard will result in refugees being returned to harm. The United States Congress must not alter this standard, which is central to the United States’ compliance with the international Refugee Convention.
2. Proposed change: Codifying a permanent “transit ban” or “safe third country” agreement banning people from asylum eligibility if they travel through certain countries
Likely result: Congress would block access to asylum for people who are indigent, fleeing imminent life-threatening violence, or face grave danger in other countries en route to the United States
International asylum law was developed as a direct response to genocide and persecution during World War II, when refugees fled across multiple countries to seek safety. By design, the law requires access to the asylum process for anyone who requests protection, regardless of how many countries they crossed or where they arrived. The United States incorporated these principles into domestic law through the Refugee Act of 1980.
U.S. asylum law does have certain exceptions to asylum eligibility for those who have access to meaningful and permanent protection in another country. One such exception permits the Executive Branch to enter into “safe third country” agreements with other nations, wherein the United States may return a person to a country of transit rather than allowing them access to the U.S. asylum system. However, the law requires strict guardrails on such agreements, which must be entered into as bilateral or multilateral agreements between nations, if and only if the U.S. government can assure that people subjected to the agreement will not suffer persecution because of their identity and will have “access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.”
In recent years, however, lawmakers and politicians have sought to vilify asylum seekers who travel from afar to the United States, seeking to weaken or demolish these guardrails. The Trump administration went so far as to freeze $450 million in foreign aid to Guatemala, Honduras and El Salvador and threatened to impose tariffs on Mexico in order to pressure these countries into safe third country agreements. The Central American nations relented, and nearly 1,000 asylum seekers seeking safety in the United States were sent to Guatemala under the Trump administration’s so-called Asylum Cooperative Agreement with that country—not one of whom was granted relief by the nation’s almost nonexistent protection infrastructure.
Although the Trump-era agreements are no longer in place, the Biden administration has adopted its own harmful asylum ban, which renders people who traveled through a third country and did not seek asylum in that country ineligible for asylum in the United States unless they are able to obtain an appointment through a smartphone app or show other exceptional circumstances. This ban, which draws on Trump administration policies, is intended to be temporary but is causing grave harm while it is in place, endangering the lives of thousands of asylum seekers waiting in dangerous conditions in Mexico while they try to secure an appointment.
Members of Congress have repeatedly sought to permanently codify parts of Biden’s asylum ban, including making it easier for asylum seekers to be expelled under safe third country agreements. These proposals are directly counter to the Refugee Convention’s mandate and would cause the gravest harm to those in greatest need of protection — asylum seekers who do not have the resources or are in such imminent risk that they cannot afford to buy an airplane ticket or seek advance permission to travel. These efforts also ignore dramatic resource and infrastructure disparities in the countries people have been forced to flee, as well as anti-Black racism and discrimination against LGBTQI+ people that make it nearly impossible for many people to seek protection en route to the United States.
Codifying new bans on asylum eligibility based on a refugee’s manner of transit, including creating new safe third country exceptions, will eviscerate the United States’ commitment to non-discriminatory access to asylum, cutting off protection to those in greatest need, including primarily Black, Brown and Indigenous refugees with limited resources.
3. Proposed change: Applying the policy of “expedited removal” nationwide, instead of its current scope within 100 miles of the border
Likely result: The mass deportation of immigrants across the United States without any due process protections, including no opportunity to see a judge or consult an attorney
The Biden administration has already turned to expedited removal to deport asylum seekers so fast they can’t get an attorney or justice, as NIJC asylum attorney Stephanie Spiro recently wrote in The Hill. Current expedited removal policy permits DHS to apprehend anyone within 100 miles of the U.S. border and rapidly deport them without a court hearing or access to legal counsel. Now, the White House is proposing to expand expedited removal to the entire country. This draconian change would be particularly alarming since in 2020, the Supreme Court curtailed the due process protections available to people in expedited removal. Over decades, expedited removal has been consistently criticized for immigration officers' failure to identify legitimate asylum seekers, resulting in the return of many to harm.
Expanding expedited removal nationwide would mean that any person walking down the street anywhere in the U.S. could in theory be subject to immediate deportation. This policy would further incentivize racial profiling by immigration authorities and discriminatory arrests of communities of color. On the way to the supermarket, or picking up kids from school, or calling the police to report a crime: expansion of expedited removal makes every interaction a threatening one. It would turn the entire country into a de facto border zone. During prior incarnations of these proposals, many people began carrying around proof of the length of their time in the United States whenever they left the house.
This would be yet another example of the Biden administration recycling Trump anti-asylum policies. The Trump administration expanded expedited removal to anyone present anywhere in the United States for less than two years, despite facing litigation. Upon taking office, Biden ordered DHS to review the policy and consider “legal and humanitarian obligations.” DHS then proceeded to rescind the Trump policy, noting that expedited removal is “best applied at or along the border… and for noncitizens who entered the United States recently, consistent with longstanding practice and in furtherance of border security aims.” In other words, the Biden administration previously rejected the expansion of expedited removal, but is now using it as a bargaining chip for Congress to trample asylum seekers’ rights and appease anti-asylum legislators.
The White House is negotiating away the fundamental rights of women like NIJC client Viv, whom the U.S. government would have returned to the Colombian guerillas who raped her but for NIJC’s intervention. Because Viv was afraid of disclosing her rape in front of her children, she failed her credible fear interview under expedited removal proceedings. Retained at the eleventh hour, NIJC was able to help her appeal the negative decision and support her in disclosing her rape in court. But asylum seekers who are unable to quickly find legal representation are routinely denied this opportunity in the normal course of expedited removal.
Expanding expedited removal puts a target on the back of every immigrant in the United States. DHS previously rescinded a similar Trump policy and already uses expedited removal with devastating due process consequences for asylum seekers and families. Codifying expanded expedited removal would enable the daily and widespread trampling of basic principles of due process, making communities across the country vulnerable to mass deportation operations.
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Members of the United States Congress who are considering permanent legislative changes that would place the United States in violation of several international treaties and eviscerate the integrity of the U.S. asylum system are allowing fear and nativism to drive the United States’ legislative agenda.
Congress must reject these poison pills, all of which would disproportionately target and endanger Black, Brown, and Indigenous asylum seekers, and would incentivize other nations to follow suit and destabilize asylum access on a global scale. NIJC joined 187 organizations urging Congress to reject proposals that would devastate the U.S. asylum system and harm countless migrants and people seeking refuge. The Congressional Hispanic Caucus and 11 Senators have also called out the danger of these proposals, which would potentially deny “lifesaving humanitarian protection for vulnerable people, including children.” There is no justification for gutting access to safety for those in need, especially as a tradeoff for a government funding package.
This explainer was updated on December 8, 2023, to reflect proposals currently on the negotiating table.