DHS Switches Its Position on Applying the Mandatory Bars to Asylum to Credible Fear Screenings

CIS submitted a comment explaining how the rule can be strengthened

By Elizabeth Jacobs on June 20, 2024

The Center for Immigration Studies (CIS) submitted a public comment on June 12, 2024, to respond to the Department of Homeland Security’s (DHS) notice of proposed rulemaking that will allow (but not require) asylum officers to apply some of the mandatory bars to asylum and withholding of removal to credible fear screenings. The policy change, which was originally initiated by the Trump administration in 2020 and repeatedly rejected by the Biden administration since taking power in 2021, appears to be a last-minute policy reversal to address the growing national security concerns connected to the Biden administration’s mass-parole policies.

In our comment, CIS rebutted critics’ comments that applying the mandatory bars to asylum and withholding of removal violates federal law and the United States’ nonrefoulement commitments under the Convention Relating to the Status of Refugees (also known as the 1951 Refugee Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). CIS explained that neither treaty is “self-executing”, and therefore only domestic law controls their implementation. Moreover, the Immigration and Nationality Act (INA) specifically requires asylum officers conducting credible fear screenings to determine whether an “alien could establish eligibility for asylum under section 1158 of this title [governing asylum eligibility]”, which would by extension include the application of the bars listed in section 208 of the INA (section 1158 of the U.S. Code) that are included in DHS’s proposed rule. Screening for statutory withholding of removal and withholding or deferral of removal under the CAT regulations are not required by the INA, but by regulation, and DHS’s proposal does not make any changes to CAT eligibility screenings.

CIS also recommended that DHS strengthen its proposal by requiring asylum officers to apply all of the 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 bars, such as 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. Concerningly, the rule also allows asylum officers to disregard the mandatory bars to asylum and withholding of removal altogether if they choose.

Finally, CIS strongly recommended that DHS implement additional policies to stem the border crisis and curb asylum fraud and abuse. Without effective deterrence policies in place, DHS will continue to recklessly threaten public safety and national security while undermining the integrity of the immigration system as a whole.