As the historic crisis on the Southern border continues to surge and strain limited government resources, the Biden administration must implement reforms to deter the filing of fraudulent or frivolous asylum applications at the Southern border. Fortunately, the government already has tools to mitigate the crisis in existing legal and regulatory authorities. And, importantly, Congress can codify and strengthen the current regulatory requirements to ensure asylum officers properly apply this bar early on at the credible fear screening stage.
Aliens who receive protection from deportation in the United States typically either receive relief under the asylum laws or protection under the regulations implementing the Convention Against Torture (CAT). A grant of asylum is not a right but a discretionary benefit that requires an applicant to show both that they possess a well-founded fear of persecution in their home country and that they warrant a grant of adjudicator discretion. Protection under CAT, on the other hand, prohibits the Department of Homeland Security (DHS) from removing an alien to a country where it is more likely than not that the alien’s life or liberty will be threatened.
Both the asylum laws and regulations implementing CAT require the government to consider an alien’s ability to relocate to a safer region in their home country to avoid the harms they claim to fear. For example, once an asylum applicant establishes that they have suffered persecution in their home country, 8 C.F.R. § 1208.13(b)(1)(i)(B) makes asylum unavailable if “[t]he applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality ... and under all the circumstances, it would be reasonable to expect the applicant to do so”. When evaluating whether an alien is eligible for protection under CAT, officers must consider whether, while evaluating the totality of the circumstances, the availability of internal relocation eradicates the alien’s need for protection in the United States.
Currently, regulations (at 8 C.F.R. § 1208.13(b)(3)(ii)) also set a presumption in favor of the applicant that internal relocation is not reasonable in cases where the alien’s alleged persecutor is their government. In recent years, however, the majority of illegal border-crossers are not claiming persecution at the hands of their government. Most claims allege harm from private actors, such as gangs, rogue officials, or domestic partners. Courts have held that “Relocation is generally not unreasonable solely because the country at large is subject to generalized violence.” (See Hussain v. Rosen). Indeed, asylum protection is also not available for fear of generalized violence, but that is another discussion.
In short, if an alien can safely relocate to another region of their home country without facing unreasonable hardship, the alien should be found ineligible for protection through either asylum or CAT under the existing framework. And while each internal relocation determination must be made on a case-by-case basis, meaning a country’s conditions alone should not be determinative of an applicant’s eligibility, faithful application of the internal relocation bar would both limit the number of credible fear applicants who receive positive fear determinations and discourage illegal immigration by making it harder for illegitimate asylum claims to clog the immigration system.
Accomplishing these ends would save the government (and taxpayers) millions in detention, housing, transportation, healthcare, legal, and administrative costs associated with processing credible fear cases at the Southern border. (It should be noted that, despite statutory mandates, DHS is currently not detaining the majority of aliens who are placed into expedited removal proceedings after illegally crossing the border. This topic also warrants its own discussion.) Most importantly, strengthening internal relocation rules will help ensure that government resources are focused on applicants with both the greatest likelihood of receiving protection in the United States and who possess the greatest need for protection.
Accordingly, Congress should amend the Immigration and Nationality Act to ensure internal relocation is applied at the credible fear screening stage and clarify the standards by which internal relocation is applied. As the government explained in its 2020 proposed rule, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, “Current regulations regarding internal relocation inadequately assess the relevant considerations in determining whether internal relocation is possible, and if possible, whether it is reasonable to expect the asylum applicant to relocate.” Even without Congress’s help, the government can strengthen the internal relocation framework by clarifying its regulations and providing adjudicators better training and resources on conditions in countries with high numbers of asylum-seekers.