On December 17, 2024, the U.S. Department of Homeland Security (DHS) finalized its regulatory proposal to require asylum officers to apply some of the mandatory bars to asylum and withholding of removal to credible fear screenings. The change will allow asylum officers to weed out non-meritorious claims made by aliens with known criminal and national security concerns at an earlier stage in the credible fear process, but also recklessly authorizes officers to ignore these statutory restrictions at their discretion.
The policy change, which was originally initiated by the Trump administration in 2020 as a part of a larger overhaul of the regulations governing the credible fear process, had been repeatedly rejected by the Biden administration since taking office in 2021. The reversal, however, appears to be a last-minute attempt to deal with the growing national security concerns associated with the Biden administration’s lax border enforcement policies.
CIS submitted a public comment on DHS’s proposal in June, recommending that DHS strengthen the rule by requiring asylum officers to apply all of the mandatory bars to asylum and withholding of removal to credible fear screenings. As written, DHS’s current proposal only covers the bars that are related to national security or public safety threats, but notably leaves out other statutory bars to protection eligibility, including what is known as the “firm resettlement” bar, which prohibits aliens from receiving asylum if they have already been firmly resettled in third country prior to their arrival in the United States (INA §§ 208(a)(2), (b)(2)(A)(vi)). Concerningly, the rule also allows asylum officers to completely disregard the mandatory national security and public safety-related bars to asylum and withholding of removal altogether if they choose.
In its response, DHS said it “declines to include consideration” of other bars to applying for asylum because doing so “would undermine the efficiency of fear screenings and would not be a productive use of Department resources”. DHS added that those bars “do not serve the same public safety purpose that the bars [asylum officers] will have the discretion to consider under this rule”.
The agency’s response, however, is deficient for two reasons. First, it ignores the serious public safety concerns that are inherent to mass illegal immigration across the southern border.
Second, it directly conflicts with justifications DHS cited in other recently issued rules restricting asylum eligibility. DHS acknowledged there that the large number of credible fear referrals for aliens who do not have a lawful basis to remain in the United States creates “a vicious cycle”, which “forces DHS to release individuals into the backlogged immigration court system … . [T]he process can take several years to result in a final decision or consequence, which then incentivizes more people to make the dangerous journey north to take their chances at the [southwest border].” (Citation omitted.) Nevertheless, the agency declined to allow asylum officers to consider these other bars to eligibility at the screening stage, even when sufficient evidence is available to determine an alien does not have a significant possibility of a meritorious claim. As a result, this policy decision will allow a larger number of aliens to receive positive credible fear determinations, with a smaller percentage of those ever to be granted protection in the form of asylum of withholding of removal. This will waste both DHS and immigration court resources and further the “vicious cycle” DHS claimed it wants to end.